Physicians News May 2009 : Page 1

PHYSICIANSNEWS Online Doctor Ratings Philadelphia Metro Edition PhysiciansNews.com Jeffrey Segal, MD or Physician Bashing: There Has Got To Be A Better Way D on’t see this doctor. Run, and run as fast as you can.” “This doctor learned everything he “ knew from Grey’s Anatomy. The TV Show.” “Butcher. Need I say more.” Welcome to the world of the Internet. With the click of a mouse, a patient can review a doctor’s performance. There are now over 40, mostly anonymous, rating sites targeting healthcare professionals. The paradigm argues that all service providers are fair game. Roofers, contractors, plumbers…and now physicians. There are at least four differences between healthcare and plumbing. First, medicine is not spectator sport. Patients participate. Results depend upon how compliant patients are with taking medications and following post-op instructions / post-op care. My plumber only asks that I pay his bill. He does not ask that I assist him in applying caulk to the tub. Second, medicine is often delivered by a team. Not one person. Third, medical outcomes are often knowable only over time; often a long time.With plumbing, you either have hot water or you don’t. Fourth, not all patients are equal and results vary. If a patient is 400 pounds and smokes, a different result is more likely than if the patient is a svelte, marathon runner. So, if healthcare is different than plumbing, is it not possible that healthcare rating sites are, in principle, useful? Perhaps. Most patients prioritize their concerns in the follow order: Don’t kill or maim me; Make me better; Be kind to me. Most patients prefer a competent jerk to an incompetent diplomat with great bedside manner. That said, patients are interested in knowing whether their doctor has good communication skills, is trustworthy, and punctual. So, in principle some utility to rating sites What’s wrong with sites in 2009? A lot. (1) Is the posting individual a patient someone posing as patient? Anyone with an axe to grind – such as a competitor, ex- spouse, or disgruntled employee -- can post and post and post. (2) Physicians are forbidden by law to respond to factually incorrect claims. The usual response to offensive speech is mor speech. However, due HIPAA and state pri laws, physicians are foreclosed from this option. A physician can’t even May 2009 Digest Continued on page 2 All A-Twitter Over Online Physician Ratings: The protection and risks related to patient waivers Justin D. Ackerman, Esquire recently. In his article, “Doctors Respond to Internet Ratings by Patients” on March 15, 2009, Steve Twedt of the Pittsburgh Post- Gazette outlined the war being waged between Internet sites that pro- mote the rating of physicians by their patients and certain physicians who feel that they are at a systematic disadvantage because they have no ability to defend themselves without running into patient privacy and ethical considerations. As Mr. Twedt explains, some physicians now request that their patients sign a document promising, in part, that he or she will not post T negative comments about the physician on any Internet site without the physician’s consent. Proponents state that these waivers represent the one weapon available to physicians in leveling the playing field in the ever-expanding battle against frivolous on- line assaults on physicians’ hard-earned reputations. Detractors state that these waivers are nothing but glorified gag orders stifling patients’ First Amendment rights. The controversy surrounding these waivers gives many physicians pause in PRST STD US Postage Paid Permit No. 397 Bellmawr, NJ INSIDE THIS ISSUE FEATURES For the solo practitioner and the small to midsize practice that accept Medicare, chances are increasingly likely that a recoup- ment action is in their future. Read about strategies to avoid overpayment on p. 10. DEPARTMENTS Policy . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Technology . . . . . . . . . . . . . . . . . . . . . . . 8 Buiness . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Finance . . . . . . . . . . . . . . . . . . . . . . . . . 11 Recruitment . . . . . . . . . . . . . . . . . . . . . . 14 he topic of “mutual privacy agreements” offered by companies such as Medical Justice has found its way back into the news implementing such a requirement. Refusal to execute a waiver without more does not justify terminating a pre-existing relationship with a patient. Ethics considerations, however, would not prohibit a physician from refusing to enter into a patient relationship with an individual who refuses to sign. Those physicians who choose to adopt such a practice would be well advised to further consider all of the consequences that may arise with the waivers when weighed against the potential benefits. In order to adequately analyze the protection that a waiver provides to a physician, one must first distinguish between true and false comments. No patient may defame a physician on-line or otherwise. Defamation is a term often used to include all types of negative speech; however, it really only applies if the speech (written or verbal) is both untrue and harms another’s reputation. Therefore, in cases where an identified individual defames a physician, a waiver likely offers no additional protection. Although First Amendment rights are not necessarily implicated in connection with the waivers, courts have recognized and protected an individual’s right to anonymous speech under the First Amendment. While only a few courts have dealt with the issue of disclosing the identity of authors of anonymous on-line comments, those cases have required the plaintiffs to offer evidence of defamation, including Continued on page 2 Art Glazer/Getty Images

Online Doctor Ratings or Physician Bashing: There Has Got To Be A Better Way

Don’t see this doctor. Run, and run as fast as you can.” “This doctor learned everything he knew from Grey’s Anatomy. The TV Show.” “Butcher. Need I say more.” Welcome to the world of the Internet. With the click of a mouse, a patient can review a doctor’s performance. There are now over 40, mostly anonymous, rating sites targeting healthcare professionals. The paradigm argues that all service providers are fair game. Roofers, contractors, plumbers…and now physicians.

There are at least four differences between healthcare and plumbing. First, medicine is not spectator sport. Patients participate. Results depend upon how compliant patients are with taking medications and following post-op instructions / post-op care. My plumber only asks that I pay his bill. He does not ask that I assist him in applying caulk to the tub. Second, medicine is often delivered by a team. Not one person.

Third, medical outcomes are often knowable only over time; often a long time. With plumbing, you either have hot water or you don’t. Fourth, not all patients are equal and results vary. If a patient is 400 pounds and smokes, a different result is more likely than if the patient is a svelte, marathon runner.

So, if healthcare is different than plumbing, is it not possible that healthcare rating sites are, in principle, useful? Perhaps. Most patients prioritize their concerns in the follow order: Don’t kill or maim me; Make me better; Be kind to me. Most patients prefer a competent jerk to an incompetent diplomat with great bedside manner.

That said, patients are interested in knowing whether their doctor has good communication skills, is trustworthy, and punctual. So, in principle, there may be some utility to rating sites -- if done right.

What’s wrong with doctor rating sites in 2009? A lot.

(1) Is the posting individual a patient or someone posing as a patient? Anyone with an axe to grind – such as a competitor, exspouse, or disgruntled employee -- can post and post and post.

(2) Physicians are forbidden by law to respond to factually incorrect claims. The usual response to offensive speech is more speech. However, due to HIPAA and state privacy laws, physicians are foreclosed from this option. A physician can’t even Acknowledge that the poster is his patient. Half a story is not a full story.

If a patient has posted that on postop day number two his wound opened up- sounds bad. Right? But, what if the real story is the patient was told to avoid heavy lifting for six weeks, but he went back to work as a ditch digger on post-op day number one. The interpretation changes.

(3) The information on these sites is misleading. It is simply unreliable. If there is a “wisdom of the crowds” on most sites, there are no crowds.

Unverifiable, anecdotal, anonymous postings do not improve the quality of healthcare. These postings are detrimental to doctors' reputations and misleading for patients who use the Internet to locate the best healthcare providers for their condition.

What can physicians do if they are unfairly targeted on such sites?

If the doctor does not plan ahead, he has little to no recourse. As an arcane nuance of cyberlaw, the web sites are immune from any accountability (Section 230 of the Communication Decency Act). These sites have generally taken the position they will not monitor or police any content. If a patient posts truly defamatory speech, the doctor can potentially sue the patient.

But defamation has a formal legal definition. Mere opinion does not rise to the level of libel or slander. Both require a false statement of fact that damages reputation. In the eyes of the law, opinions are fair game. In fact, the comments referenced at the beginning of this article would not cross the threshold for being actionable in court. But make no mistake -- even though a doctor is denied a remedy in law, these statements are clearly damaging.

With that backdrop in mind, Medical Justice crafted a solution: Mutual Privacy Agreements. When the Patient first sees the physician, the patient signs a Mutual Privacy Agreement. He agrees not to post on such sites without the doctor’s assent. In exchange, the doctor grants the patient additional privacy protections above and beyond those mandated by law.

The patient is free to speak with friends, family, other healthcare providers, hospitals, lawyers, Medical Licensing Boards, and more. The list is long. Such a long list encourages further communication in the most effective channels. The long-term goal is to promote an accountable way to provide reliable ratings, similar to JD Powers and Consumer Reports. Mutual Privacy Agreements were enacted to prod the market to self-police and do a better job.

Since 2007, the vast majority of patients who have been asked to sign such an agreement have done so. If a new patient seeks care for an elective condition, and the patient is not comfortable agreeing to the provisions in the Mutual Privacy Agreement, the doctor may recommend that that patient seek care elsewhere. The doctor may also make a judgment call and accept this patient into his practice.

Both patients and doctors are best served if their thinking on this issue overlaps. That is, if a patient values being able to post on the Internet more than other criteria, that choice should be honored; but, with a physician who is entirely comfortable with the current collection of now over 40 mostly anonymous Internet rating sites.

Medical Justice has been approached by at least four organizations asking how to “get ratings right.” Our wish list is simple. First, make sure the patient is a patient.

Next, require a minimum number of posts before they are made public. The average doctor sees between 1,000-3,000 patients a year. A sampling of four posts Is statistically nonsensical. Fifty posts – that’s another story. Further, requiring a minimum number of posts would smooth out the extremes.

Finally, limit comments to a patient’s subjective impressions. This would encompass categories such as communication skills, bedside manner, and the like. If the patient wants to comment on a doctor’s technical prowess, it would need to be backed by an expert opinion. Most patients are unskilled in analyzing whether a doctor is adept at catheter ablation of arrhythmias. Hence, their published opinion would, at best, be misleading.

Welcome to the 21st Century. Most doctor rating sites have become unpoliced repositories of Jerry-Springerlike material. Medical Justice Mutual Privacy Agreements give doctors a viable, time tested, proven tool to manage negative content until credible sites evolve. Just don’t hold your breath.

All A-twitter Over Online Physician Ratings: The Protection And Risks Related To Patient Waivers

The topic of “mutual privacy agreements” offered by companies such as Medical Justice has found its way back into the news recently. In his article, “Doctors Respond to Internet Ratings by Patients” on March 15, 2009, Steve Twedt of the Pittsburgh Post- Gazette outlined the war being waged between Internet sites that promote the rating of physicians by their patients and certain physicians who feel that they are at a systematic disadvantage because they have no ability to defend themselves without running into patient privacy and ethical considerations.

As Mr. Twedt explains, some physicians now request that their patients sign a document promising, in part, that he or she will not post negative comments about the physician on any Internet site without the physician’s consent. Proponents state that these waivers represent the one weapon available to physicians in leveling the playing field in the ever-expanding battle against frivolous online assaults on physicians’ hard-earned reputations. Detractors state that these waivers are nothing but glorified gag orders stifling patients’ First Amendment rights.

The controversy surrounding these waivers gives many physicians pause in implementing such a requirement. Refusal to execute a waiver without more does not justify terminating a pre-existing relationship with a patient. Ethics considerations, however, would not prohibit a physician from refusing to enter into a patient relationship with an individual who refuses to sign. Those physicians who choose to adopt such a practice would be well advised to further consider all of the consequences that may arise with the waivers when weighed against the potential benefits.

In order to adequately analyze the protection that a waiver provides to a physician, one must first distinguish between true and false comments. No patient may defame a physician on-line or otherwise. Defamation is a term often used to include all types of negative speech; however, it really only applies if the speech (written or verbal) is both untrue and harms another’s reputation. Therefore, in cases where an identified individual defames a physician, a waiver likely offers no additional protection.

Although First Amendment rights are not necessarily implicated in connection with the waivers, courts have recognized and protected an individual’s right to anonymous speech under the First Amendment. While only a few courts have dealt with the issue of disclosing the identity of authors of anonymous on-line comments, those cases have required the plaintiffs to offer evidence of defamation, including Damages. The plaintiff may also have to show that the damage sustained outweighs the poster’s First Amendment right to anonymous speech.

Before even reaching the issue of the poster’s identity, the physician will likely have to make a significant investment of time and money, in the form of legal fees.

Even if a physician obtains signed waivers from each of her patients, those waivers will likely be of little assistance in the case of an anonymous poster.

Additionally, waivers typically cover only the individuals who sign them. These waivers offer the physician no protection from a family member of a disgruntled patient posting negative (but non-defamatory) comments. This loophole may quickly eviscerate the time, energy and capital expended toward initiating the waiver policy.

After taking together all of these considerations, it appears that a conventional waiver only offers the physician additional protection from a patient posting true (i.e. non-defamatory) comments on an Internet site under the patient’s own identity.

Proponents of these waivers have taken an unconventional approach to offer some additional protections. They propose that the patient assigns to the physician his or her intellectual property rights (i.e. copyrights) associated with comments posted on the Internet. Using this approach, which has not yet been tried in court, physicians have persuaded website hosts to remove the questionable comments to avoid a copyright infringement suit.

If courts ultimately recognize that physicians requiring waivers receive a property right from the patient in connection with the waiver, the question then Becomes whether assignment of copyrights may be viewed as something of value that the physician receives from a patient that rises to the level of “balance billing.” Balance billing is the act of billing Medicare and in-network patients in excess of the reimbursed rate and is prohibited in Pennsylvania and many other states. With respect to Medicare, a physician who violates this prohibition may be excluded from participation for two years.

To be sure, physicians find themselves in a somewhat unique position with patients vis-á-vis other businesses and their customers. In some respects, a physician is at the mercy of a disgruntled patient. Waivers of the type described in this article may be a valid mechanism to begin to balance the playing field. The monetary investment is relatively slight and, even if they accrue no additional legal rights, the institution of such a policy may have a chilling effect on patients making negative comments via the Internet.

Nevertheless, before proceeding with such a policy, physicians should consider all of the possible ramifications, some of which may not be immediately apparent.

In many circumstances, it may be true that the public relations backlash and potential reimbursement issues make the battle one not worth winning.

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