For any business, the internet is both a boon and a curse. It can be easy to generate word-of-mouth in favor of a new product or service. Unfortunately, there are an alarming number of ways in which that word-of-mouth can turn negative and what was a great launch can soon be falling out of the sky in flames. This is not just the buzz on the social network sites. A part of the problem lies in the number of review sites like Yelp or those more clearly associated with negative comments. It is easy for someone disgruntled, whether a customer or a competitor, to set out to damage the reputation of the business. This means reputation management is a boom area as supposed experts do their best to stem to tide of negative comments and restore the positive. For doctors, the problem is relatively new but growing in severity as sites like RateMD and DoctorBase now offer the chance for anonymous individuals to make their feelings known. Since people are most often motivated by poor experiences, the reviews tend to be negative.
The problem for doctors is the issue of patient confidentiality. It is entirely possible the complainer has been diagnosed with a mental illness or there is a perfectly satisfactory way of showing why the complaint is not justifiable. But replying is usually impossible without breaching confidentiality about the diagnosis or treatment. The result is reputations are damaged and income falls as people cancel appointments and seek treatment from other doctors. There is no remedy against the sites where these negative reviews appear. They are protected by Section 230 of the Communications Decency Act. So the new strategy is to go after the patients.
This is a two-pronged approach. First, the attorney gets details of the poster from the site and threatens to sue the individual for defamation. The second is to cut this off at source by requiring patients to sign a non-disclosure agreement (or gagging contract) which bars the publication of any criticism online or through electronic platforms. This distinguishes the casual opinion of, say, a restaurant meal or the extent of leaks after a plumber claims to have finished, from the more expert services delivered by a doctor or dentist. It is less easy for a lay person to say whether a diagnosis is correct or a treatment appropriate.
The battle is not one-sided. RateMD posts a warning against the names of all the doctors who use gagging clauses and Yelp refers posters to attorneys specializing in free speech if a doctor or dentist threatens legal action. In reality, it is unlikely a court would hold these terms binding, but they are already chilling free speech. One of the more interesting reactions has come from the companies providing health insurance plans. They have been silent despite the highly public debate criticizing the medical professional. This is not to say insurers should police the contracts between physicians, dentists and their patients. But the insurers do have a say, particularly if a primary care physician refuses to deal with patients because they would not accept a gagging contract. Health insurance plans should ensure easy access to medical care.
