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Dr. Marketing is horrified by the notion that anybody can say anything on the Web. He seeks legal help. What can he do to stop such behavior?
Recently, Dr. Marketing has learned about the increasing availability of myriad Web-based advertising sites. He has spent a small fortune with this advertising and is hopeful that the vastness of the Internet will only further aid the marketing of his practice.
Because of Dr. Marketing's fascination about such Web-based advertising, he has also been logging into various Web-based chat rooms. Recently, in a chat room that has more than 50,000 subscribers, Dr. Marketing found that a former patient has stated that he has no bedside manner, creates terrible scars when doing surgery, and has no idea what he is doing with lasers.
The reality is that physicians and other healthcare professionals are often criticized on the Web. Most physicians are unaware of these critiques lurking in cyberspace.
These Web-based opinions are often given by those without any expertise. Doctors may be judged anonymously by present or former patients, and by others posing as patients, including disgruntled employees, competitors or even ex-spouses. The list could be further expanded to include all those who at any time might hold a grudge for any reason.
Unfortunately, the monetary costs of posting critical comments are near zero.
A variety of comments can be seen. Www.RateMD.com uses a smiley face to show approval of a physician, and a sad face to show disapproval. Comments are often made about bedside manners, personality or even appearance. What clearly is not posted is any objective statistical information about what really should matter: How well does the physician provide care?
Once a demeaning message makes its way online, it can become viral, achieve immortality, and be found by anybody with even the simplest of computer skills. The damage has been done.
Concern about the posting of libelous and unsubstantiated statements on the Internet is a growing legal concern. Posting of such comments on the Internet presents a totally unique problem when compared to libel in more traditional print media.
As Jeff Segal describes in a recent article in The Journal of Legal Medicine, this legal nightmare is only magnified by the "massive number of Internet users, the global scope, and the effortless access to this medium, the audience, persistence of comments posted, and potential reputational damage." The problem is only magnified when the online poster contributes content anonymously.
A 2000 Duke Law Journal article described the nightmare scenario:
If John Doe is unscrupulous or merely reckless, he can use the power the Internet gives him to inflict serious harm on the physician. He can pollute the information stream with inflammatory falsehoods, which may in turn influence others to question the physician's credibility.
Moreover, once the defamatory information enters the information stream, it may have a greater impact than if it had appeared in print. Because the defamatory statements can be copied and posted in other Internet discussion forums, both the potential audience and the subsequent potential for harm are only magnified.
Once a rumor takes hold in cyberspace, it may be almost impossible to root out.
How is Dr. Marketing to protect himself? Most lawyers would suggest that the proper response is to sue based on defamation. However, logic would suggest that an action based on defamation is a far-from-the-ideal remedy for protecting Dr. Marketing's reputation from attacks premised upon false information.
The very act of publicly prosecuting a defamation case in court only brings even more unwanted attention to actions that, at least in theory, might only be seen by a few. In reality, it is possible that the solution is worse than the problem.
Mr. Segal, in his article titled "Online Defamation," offers a novel solution to the problem. He suggests having patients, with their other intake forms, sign a "no online comments" contract. Such a contract may be easier to enforce than suing for defamation.
Since patients have numerous other avenues to report physicians' poor conduct offline, such a contract may be enforceable. Perhaps we all should be having our patients simply sign one more form.
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.