The e–rating of Doctors

These websites have been described as “the 21st century’s answer to word of mouth or over-the-garden-fence chit chat”, and “chaotic and unregulated activity which brings to mind the notorious witch trials of Salem”.^1.2 Most medical practitioners find these websites fundamentally flawed. The anonymity means there is generally no ability to identify the person who has posted the rating – is it a patient, a person with a grudge or even a colleague who is in “competition” with them? How can a handful of ratings properly represent an appropriate assessment of a medical practitioner who may see more than a hundred patients each month, and many thousands over a career? Is this an appropriate method of assessing a practitioner’s skills as a doctor? Members who contact MDA National about these websites generally want advice about what recourse they have when they are subjected to criticism on a site.

Potential legal remedies

The law as it relates to the web is new and evolving. One of the potential legal remedies available to medical practitioners is defamation. Defamation is an injury to an individual’s reputation. A publication is defamatory of a particular medical practitioner if, when published to a third person, it is likely to cause an ordinary person to think less of the medical practitioner. The publication needs to be more than negative or critical. It must injure the practitioner’s reputation; for example, give rise to contempt, hatred or ridicule, or be likely to cause an ordinary reasonable person to shun or avoid the medical practitioner. One of the defences available for a defamation claim is that of honest opinion. A defence established under this provision is defeated only if it can be proved the opinion was not honestly held by the person at the time the defamatory material was published. Accordingly, if a patient expressed an honest opinion on a website, even if defamatory or untrue, that patient may have a defence available to them. The main remedy for a defamation claim is financial compensation. Other remedies include public apologies, retractions or rectification statements. There are two potential causes of action:

• seeking a remedy against the person posting the comment
• seeking a remedy from the proprietor of the website and/or internet service provider (ISP).

In order to seek a remedy against the person who posted the comment, the poster must be able to be identified. Medical practitioners are unlikely to be able to obtain a court order requiring disclosure of the poster in an overseas jurisdiction (e.g. the US where most of these websites are incorporated). If the identity of the person making the comments on the website cannot be adequately proven, then there is likely to be very little a medical practitioner can do. Given the anonymity of posters on these websites, it may be tempting for medical practitioners to post positive but fictitious comments about themselves but, in certain circumstances, this can create additional problems for the practitioner. With regard to the website proprietor or ISP, under Australian defamation law, a defamation action may be brought against anyone who takes part in the publication or re-publication of the material. However, it is unlikely that any judgment made in Australia would be enforceable overseas. In particular, US legislation effectively prohibits providers of an interactive computer service being treated as the publisher of any information provided by another information content provider. In summary, while comments posted on these websites may be defamatory, there is often very little that can be done to have the comments removed, particularly if sites are companies which are incorporated and/or based in the US. While a letter demanding removal can be sent to the website proprietor, and may result in its removal, on occasion this step may simply draw attention to the existing adverse posting, and the letter of demand may be then posted on that website and others. For example, there are specific websites which post these types of letters to try to embarrass and further criticise the medical practitioner.

Conclusion

Some commentators have suggested there may be value in monitoring your online presence and reading patients’ stories, suggesting these “stories are nuggets of qualitative data on patients’ attitudes regarding the quality of care and their needs and preferences in their relationships with their doctors”³. However, our experience is that individual practitioners find adverse postings immensely distressing and anxiety provoking. Perhaps the best solution is to resist the temptation to look at these sites and/or Google your name. After all, in the past we were not aware of the “over-the-garden-fence” comments and perhaps this new cyber feedback does not enhance our ability to practise safely and to a high standard, and only serves as a source of distress. By Dr Sara Bird, Manager Medico-legal and Advisory Services

• 1,3 Jain S. Googling Ourselves – What Physicians Can Learn from Online Rating Sites. N Engl J Med 2010; 362:6-7.
• 2 Van Der Weyden M. eRating Doctors. Med J Aust 2010; 192:425.