Would You Sign Away Your Ability to Write Doctor Reviews?

MakenzieR on 13 Apr 2011 at 12:00am

You walk into a restaurant and before you sit down, you’re asked to sign a contract saying you agree to not write any online reviews about them. Do you stay, or walk out the door? What if it was a hotel? Your hairstylist?

What if it was your doctor?

DoctoredReviews.com launched this morning to educate consumers about the use of these contracts in medical offices. According to the DoctoredReviews homepage:

We call them “anti-review contracts”— that either expressly prohibit patients’ online reviews or permit patients to post online reviews only so long as doctors can remove them whenever they want. In exchange for these restrictions, the contracts promise patients purportedly greater privacy. However, this privacy promise is illusory, and the restrictions these contracts impose on online reviews are a bad deal for patients—and everyone else.

We asked Eric Goldman, a DoctoredReviews founder and Associate Professor at Santa Clara University School of Law, why he’s so passionate about educating patients and doctors on the downside of these contracts.

Doctored Reviews is a website for doctor review contracts by Medical Justice

Goldman points out that it's in both the doctor and patients best interest to stay away from review contracts. “The doctors are starting off their relationship with patients without any trust,” he says. “Basically, doctors are saying to patients: ‘Trust us to render competent and professional medical care, but we don't trust you to tell the truth about us.’ If the contract undermines the doctor-patient trust relationship, the quality of medical care will suffer.”

While DoctoredReviews states that it isn't taking sides between physician and patient--they argue for free speech and ethical medical care--there is a reality that reviews are a risk to a medical practice. Physicians cite phony or inaccurate reviews as a form of reputation attack where they have no viable means to mount a defense. A sign of the significance of this matter is that every national medical meeting for plastic surgeons includes education sessions dedicated to defending a practice from hostile online postings, ranging for patients who set up negative blogs to anonymous people posting online reviews.

Goldman sees a world in which doctors can still maintain thriving practices, regardless of the presence of negative reviews or patient rants.  His tips for doctors include:

  • Listen carefully to the feedback you’re getting. There may be legitimate problems in the practice that need to be fixed.
  • Encourage all patients to write reviews so there are more patient perspectives – and it’s not just the angry who rush online to tell the world.
  • Don’t overreact to any single negative review because 1) Consumers are smart enough to discard the outlier reviews. 2) Having 100% glowing reviews may look fake. 
  • If a review is truly problematic or libelous “doctors should consider responding to the review on the spot (not disclosing patient confidential information, but there are ways to respond without doing so) or, in the most egregious cases, bringing a lawsuit against the patient.”

Medical Justice is a service that arms doctors with contracts which provide the doctors with rights to a patient's online postings. They claim to have over 1,000 US doctors using their contracts.

We asked their CEO Dr. Jeffrey Segal how they respond to criticism about the contracts being anti-free speech and doctor-patient trust. He said "We regularly counsel our doctors to enforce the agreements sparingly, if at all. We believe feedback is useful for the doctor. If a doctor removes all negative posts, as opposed to only those that are fictional or fraudulent, then all he/she will have is 100% positive posts. The public at large knows that no person can make 100% of people happy. So, a profile with 100% glowing comments may be received as lacking credibility...While there may be near term benefit from that strategy,we believe that long term removal all negative posts makes little sense."

If doctors are encouraged not to enforce the contracts, what's the purpose? "The agreements are the only way to reasonably address fictional or fraudulent posts," said Segal. "The doctor asks all patients to sign the agreement. Posts by competitors and ex-spouses are not labeled 'competitor' or 'ex-spouse.' They are labeled as someone posing as a patient...The default assumption is that a person representing themselves as a patient has signed an agreement."

At RealSelf, we’ve yet to receive any breach notifications from doctors--but we do receive mails from patients who have posted and are interested in removing their material from RealSelf. In these cases, they reference that the doctor is threatening to sue them based on violating an agreement they entered from the onset. We have no insight into whether these were Medical Justice contracts or another form of agreement that a doctor developed with their attorney.

Have you ever signed a contract that relates to you posting a review of a doctor?  Are you a doctor who requires patients to sign a review contract? Please share your thoughts.

Lead photo credit: Katie Tegtmeyer on Flickr.com

Comments (14)

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I have posted negative reviews about the clinic I went to, simply because 1. I was lied to about the safety of the treatment, which affected my desicion making. 2. When complications came up, my concerns were brushed off by the physician who treated me, even if others and two dermatologists can see the damage done to me 3. No followup what so ever after I went to complain. This doctor and the clinic was so unetchical in their way off running their business, I feel it is my right to post negative reviews to tell others correctly about my experience, and if that takes business away then so be it. Negative review is a review same as a positive one. How many fake positive reviews clinics post about themselves? Or do we now care more about people making money or people's faces getting destroyed by unetchical clinics? Bad reviews are not all rants from ex spouces and "crazy" people, maybe take them to the heart and think could you run your business in a more ethical way? Most people on Realself.com complain that the doctors don't openly discuss all the negative effects but rather lull patients into false sense of safety. This what happened to me and I find that my right to make an informed decision was taken away from me.
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Dear Grace: I am sorry that you are trying to recover while feeling so negatively about your surgeon and your experience. I would tell you that many physicians feel beleaguered by the online review issue, myself included. Not all of us have patients sign "no review" contracts as evidenced by our below comments from awhile ago. However, there is pressure on us to try to control the situation, and your surgeon may be one of those who has succumbed to that pressure. Without knowing what your surgery was and without providing medical advice, I would encourage you to assess whether you are recovering well and healing as you expected after the surgery. If you are not sure, perhaps a visit with another surgeon for a second opinion would help set your mind at ease. I can't comment on whether or not this is a "legal" issue. I can say the the fact that your surgeon asked you to sign is not equivalent to his being an incompetent surgeon and having done something wrong during the surgery. As a surgeon myself my concern for you is that your recovery not be slowed or derailed by these worries; I believe that your energies should be spent healing. If your trust in this physician has been shaken enough that you cannot work with him, find a second opinion to help you safely navigate your recovery, particularly if you feel you cannot address these concerns directly with your him. Best Wishes, Elizabeth Lee, MD
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Dear Dr. Lee: I did have the surgery. But once I saw the form I lost trust in the surgeon. Instead of having a positive recovery I am worrying if he did something wrong. Before I saw the form my attitude was that I was going to have the surgery and then I was going to post a glowing report about how great I looked and what a wonderful surgeon I had. Now I hope that I get out of this okay. It's difficult pretending that everything is okay. I am very angry about this. Even if my life had not been scheduled around the surgery does one want to piss off their plastic surgeon right before surgery? I'm wondering if this would be considered unethical behavior by one of the medical societies? Thank you.
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Dear Grace: Did you ultimately have the surgery as scheduled? Being handed forms like this at a time when you feel you have no choice to refuse as your life has been scheduled around this surgery is extremely upsetting and frustrating. If you went forward anyway, I hope your recovery is proceeding well. Best wishes, Elizabeth Slass Lee, MD
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I'm going to add to my previous post that in the agreement, given to me immediately before surgery, I had to agree that "Patient has been given the opportunity to ask questions and receive satisfactory and adequate explanations." That was not true. I also had to sign to "Patient agrees that the obligations of the Patient are necessary and reasonable ..." No I didn't and I don't. Lesson here is to ask to see all the pre-surgery agreements during the consultation phase.
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I was asked to sign the agreement the morning of my surgery. I had gone through an extensive pre-op testing process, taken time off from work, there was a temp hired to do my job. I did not have the option to say that I wanted to use another surgeon at that point. If this had been mentioned at my initial consultation or included with my pre-op instructions I would have gone elsewhere. I believe that the doctor acted unethically and I was forced to sign under duress.
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I encourage patients to speak their minds freely, both before and after a surgical procedure. We surgeons accept the reality that we cannot speak of this with anyone while the patient can speak of it with everyone if they choose.

Should there be a real or perceived problem following a procedure, I want the patient to communicate this to me so that a solution may be found. It seems in no one’s best interest for patients to tell everyone they know, write a letter to the newspaper editor or seek an interview from their local television news station. Posting their displeasure on the Internet, especially if anonymous, serves little positive purpose.

A less-than-stellar review is one thing, but attacking a health professional online surely terminates the original positive relationship that was based on face- to -face communication and trust. It seems like a sad last resort that is fueled by frustration, anger and perhaps revenge.

Assuming that the operating surgeon has invited the disappointed patient back to discuss and strategize how to best find a solution to their problem, the real harm with the “internet complaint” is that it effectively terminates the (once healthy) patient-physician relationship, and in some cases represents in essence, a type of betrayal.

So, having a frank discussion pre-operatively with patients on how best to handle possible disputes and disappointments seems like a healthy exchange, and this might involve a signed agreement.
Donn R Chatham MD
Facial Plastic Surgery
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I have read and re read this section many times this weekend. I agree with Mr. Goldman that a patient has the right to comment whether positive or negative about their experience. As long as there is no slander or liable. Yes it is a fine line. I look at this another way, if a patient signs this than it counters any positive comments posted because they can not post either positive or negative comments, the two way street concept. Another thought after speaking to 3 PI attorneys in MIAMI, their consensus opinion was 'what does the surgeon have to hide?' I would be very concerned if my cataract doctor asked me to sign this, in fact I would reconsider using him. Something to think about.
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Medical Justice here. We’d like to weigh in and hope you will be open to listening.

First, we encourage online ratings. It's the best way to get continual improvement in performance Patients have a right to “shop around” and know what others think of their physician.

With that as backdrop, I hope to shed some light the doctor-patient agreements being discussed. The agreements explicitly state that online feedback is not only reasonable, it’s encouraged. The exact language is: “Nothing in this Agreement prevents a patient from posting commentary about the Physician - his practice, expertise, and/or treatment - on web pages, blogs, and/or mass correspondence.”

The label “gag order” just does not comport to what patients are signing. The agreements are only relevant if and when a fictional or fraudulent post goes up. An example: when a poster is a competitor, or not even a patient. It is not intended for use with every negative post.

We believe that there needs to be a better (and different) way to rate doctors. Choosing a doctor on a rating site, where on average 1 in 3 doctors have negative ratings, seems misleading. Are 33% of doctors bad? Of course not. Most patients actually like and trust their doctors who are extremely competent in their profession. And most doctors have only 1to 3 ratings, yet they see between 1,000 and 3,000 patients a year.

As the system stands now, a doctor is legally forbidden to respond to ratings from patients. They cannot even disclose that they actually treated a patient. Half a conversation does not inform and is unfair to the consumer reading it. If a patient says that two days after surgery his wound opened, you might think the doctor made an error. But, if you learn the doctor instructed the patient to avoid heavy lifting for six weeks, and the patient went back to construction work on post-op day number two, the conclusion would be different.

Not all rating sites are the same. Some, such as Real Self and Vitals, are exemplary. They are balanced, fair, and don’t have an axe to grind. They serve the physician and patient community. How many times has RealSelf been asked to remove a negative post by enforcing a copyright agreement. Zero. Have there been any negative comments on Real Self? Of course. But, if a site is fair, physicians will respect it and behave responsibly. That’s an empirical observation.

Some of the most talented doctors in the country have embraced these agreements. These are doctors’ doctors. If you avoid seeing a doctor merely because he or she uses these agreements, of course that is your choice. But, you will be limiting your treatment based on something other than skill and talent. If you see one of these doctors and sign such an agreement, the vast majority of times your comments, good, neutral, and, yes, bad will stay exactly where you put it – on a rating site. Constructive feedback is fine. Erroneous feedback is not.

Thanks for taking the time to read.

Jeff Segal, MD
Founder
Medical Justice
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Thanks for taking the time to post! It's great to have your side represented in full.

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In the overall scope of modern communication, the Internet is relatively new and the rules and customs are still in their infancy. We have all noted new technology and new community habits changing sometimes weekly. Simply stated, in the medical/dental world, we are also just starting to determine appropriate ethics and marketing strategies.

The Internet is here to stay. Reviews, blogs, and postings are the new standard to complement word of mouth recommendations good and bad.

I, personally, feel such a contract would contradict the trust our office wants to build with all patients.

On the other hand, some controls and regulations must be established to insure that reviews are truthful. It does effect one's reputation built over a life-time. I have experienced reviews posted that never occurred. They were likely placed by competitors. The site administrators were difficult to contact and unwilling to remove the false statements. There should be a mechanism to regulate such reviews.

Mickey Bernstein, DDS
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I do use the Medical Justice paperwork because no matter what the law professor at SC says, negative reviews can impact your practice. I have so many great reviews on line on many sites but have had a few patients ask me to explain the couple of bad ones they have come across (and these aren't anything compared to some I have read from other doctors). Interestingly, at least one of these bad reviews is from a rival office I am quite certain. I tried through legal means to identify the author but with phony email addresses etc it was impossible. I wonder how many prospective patients never give me the opportunity to explain these posts.

I also strongly object to how sites like Yelp and RateMDs prioritize the negative posts and make these more visible than 30+ positive reviews. I would probably get rid of my Medical Justice forms if only the posts were required to be maintained chronologically as it is very frustrating to see a post from 3 years ago sitting above the 30 positive ones that have come in since that time.

So, while it may be that having all positive reviews looks suspicious, it is not true that the savvy patient will always overlook a few negative ones as easily as the "experts" would like you to believe.

Freedom of speech is essential but some regulation of these sites is required. Maybe eventually there will come a time when nobody believes anything they read on line but we are no where near that at the moment.

In 2 years of using these, I have only had 2-3 patients ever want to discuss it and all sign it. My practice has in no way been hurt by using these forms so this claim that it compromises the doctor patient relationship is false. Since all sign, if an "anonomyous" post came up you could remove it because all have signed on to the plan. It is this aspect that made me want to go with MJ 

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Thank you, it is really great to hear from someone who uses these contracts. Particulary because you touch on exactly what Dr. Segal was explaining: that the real purpose is to give you control over defamatory, anonymous reviews.

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I do not ask patients to sign a "review contract" and I have many reviews on line, most of them good, a few of them really awful. While I was initially quite upset by the bad reviews, I was pleasantly surprised to have 4 new patients the next week from that website hosting the bad postings. All 4 patients said "Found you on Yelp.com. Everyone loves you except for that crazy person." It was a good lesson for me. Most of my patients are smart enough to see the bad review for what it was, an outlyer. True, I can't know how many prospective patients see those bad reviews and choose not to come in. My guess is though that they are probably not great patients for me anyway; I like my patients thoughtful and well informed.

Like it or not, the internet is a public forum and I don't expect to control what patients post there. I only hope to continue to provide the best care I can to patients and hope that the good reviews continue to out number the bad.

I would like to make one more comment though. I do greatly object to Yelp.com's "proprietary algorithm" whereby they assign "relative value" to Yelpers and "filter" reviews of people they don't consider to be "valuable Yelpers." This algorithm favors those who rant and rave as the gather "funny" votes, and filters those reviews by people who only Yelp occasionally. My 3 bad reviews stay up while 30, 5 star reviews are "filtered."
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