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    Physicians have limited recourse against online defamation


    David Goldberg
    Not only is Dr. Derm a successful dermatologist, he is also very Internet-savvy. He tinkers with his own website and finds that many patients come to his office because of his quality of care as well as his presence on the Internet.

    In fact, Dr. Derm spends 10 percent of his annual gross earnings on marketing, much of which is Internet-based. He often finds himself telling his peers how wonderful Internet marketing is, until one day he finds out that a disgruntled patient has damaged his reputation on the Web.

    This disgruntled patient not only accused Dr. Derm of poor medical practice, the patient also videotaped his staff drinking beer in the nurse's lounge. The videotape and comments have been placed on YouTube by the vindictive patient, and the video has gone "viral" and has been seen by thousands of people.

    Dr. Derm is concerned that this malicious act may ruin his career. The wonders of the Internet have now cursed him. What can he do?

    Limited recourse

    Unfortunately, because of privacy laws, when an anonymous patient places a scathing review on a website (examples are http://RipoffReport.com/ and http://RateMDs.com/), a physician has little recourse. Many physician review sites are as likely to misinform as they are to inform.

    If a patient complains online that his surgical excision opened only two days after dermatologic surgery, there is no way for anybody to know whether the patient has performed strenuous exercise. Unfortunately, the reviewers of these sites generally are not patients. There are known instances of dentists being accused online by their competitors of being child molesters. Similarly, laudatory online comments can be written by the physician himself.

    One way to try to work around such frivolous online statements is to have patients sign a waiver that has them promise, in case they are not happy with their care, that they will not post online comments to that effect. The way such contracts are enforceable is as follows.

    In general, websites acting as platforms for outside commentary are not liable for defamation suits. They are, according to North Carolina neurosurgeon/attorney Jeffrey Segal, M.D., J.D., subject to copyright laws. Waivers can be written to assign copyright to the treating physician. If the treating physician asks the patient to sign such a "copyright" waiver, the physician can claim ownership of any anonymous review of the practice and demand that such an online review then be removed. There are now examples of website posts removing such deleterious copyrighted comments.

    Needless to say, not all patients will agree to sign such a waiver. Some may feel such waivers are simply "gag orders." The reality is that disgruntled patients are free to speak with family, friends, other physicians, lawyers, hospital peer review committees or credentialing committees. There are many appropriate places where patients can express their views.

    Alternatively, waivers can be designed so as to allow disgruntled patients to express their views on sites such as http://DrScore.com/ and/or http://RealSelf.com/. These sites generally take a more fair and balanced approach.

    What websites can do

    Barring anonymous sites would be ideal. However, this is unlikely to happen. At the very least, it would be ideal if Internet sites could verify that the "reviewer" is, in fact, a patient of the physician he or she is criticizing (or praising).

    Even better, to prevent the extreme opinion — positive and/or negative — from skewing impressions, websites should hold off from posting such reviews until they have at least 10 or more representative views. In an ideal situation, reviews should focus on those aspects about which a patient would be expected to be knowledgeable. These would include issues such as waiting time, appropriate parking, or how the patient is treated by the physician and/or staff. Commenting on physician technique or results is an entirely different issue.

    In this particular case, however, without any signed waiver in place, Dr. Derm is in no position to stop his patient from posting the negative comments online.

    David Goldberg, M.D., J.D., is director of Skin Laser & Surgery Specialists of New York and New Jersey; director of laser research, Mount Sinai School of Medicine; and adjunct professor of law, Fordham Law School.

    GoldbergDavid.jpg
    David J. Goldberg, M.D., J.D.
    Dr. Goldberg is Director of Skin Laser & Surgery Specialists of New York and New Jersey, Director of Mohs Surgery and laser research, ...

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