If providers still aren’t quite sold on the idea of promoting consumer reviews, Goldman says they should learn from the failure efforts some doctors have taken to legally suppress consumer review.
In 2007, Greensboro, N.C.-based Medical Justice, a firm that helps doctors manage legal liability, began selling form contracts to doctors that barred patients from posting reviews about their care at their doctor’s medical facility. Patients were required to sign the contracts before receiving treatment.
“In consideration for treatment and the above-noted patient protection, Patient agrees to refrain from directly or indirectly publishing or airing commentary upon Physician and his practice, expertise, and/or treatment unless explicitly mandated by law. Publishing is intended to include attribution by name, by pseudonym, or anonymously,” the text of one contract reads.
Other Medical Justice contracts assigned future copyright over any online reviews to the doctor, which would allow medical practices the right to take down a patient’s comments from a consumer review website.In December 2011, the Washington, D.C.-based Center for Democracy & Technology filed a complaint with the Federal Trade Commission against Medical Justice over the legality of these contracts. The next day Medical Justice said it would retire the contracts and instruct its clients to stop asking patients to sign them.
“I take the position that what Medical Justice was selling never worked as a legal matter, so I feel like a lot of doctors may have bought something that they shouldn’t have,” Goldman says. Physicians also might learn from doctors who have filed lawsuits against patients and review sites.
Plaintiffs Don’t Win
Not one of the two dozen cases Goldman has compiled of legal action by physicians claiming defamation, trademark infringement, cybersquatting, or other injury after they were the subject of negative reviews or blog posts has resulted in victory for the plaintiff.
“In many cases the doctors look ‘thin-skinned,’” Goldman says. “The doctors overreach with their legal tools and then they look like bullies as well. And then there’s what’s called the Streisand effect—that by calling attention to something that you don’t want publicly known, you probably make it more widely known. So it’s really a risky game for doctors to pursue lawsuits against patients for their reviews.”
Federal law appears to be in favor of consumers. In December 2015 the U.S. Senate unanimously passed the Consumer Review Freedom Act, a bill that would prevent businesses from restricting consumers’ reviews of their businesses.
“I’m excited about it, and I’m hoping that the House will take it up and that can get it passed,” Goldman says. “I hope that we just get businesses to rethink that they can gag their customers from talking about them and redeploy those efforts more productively.”