September 14, 2005 /NavaStream/ Doctors have long accepted that
their patients share opinions about the care they have received,
knowing that satisfied patients will refer others while those not
so happy with their bedside manner might encourage prospective customers
to seek treatment elsewhere. But when William Boothe, an ophthalmologist
in Texas, saw that one disgruntled former patient was posting his
complaints on the Internet, he launched an aggressive response.
He sued for libel and other claims, and earlier this year a state
judge ordered the material removed from the Web.
The case is one of a growing number of legal battles being waged
over Internet postings about medical complaints. More patients are
taking their opinions of their local doctors to the Internet, and
a wider audience, and that has some medical providers on edge. Several
Web sites have sprung up that encourage patients to post anonymous
reviews of doctors and dentists, and some frustrated patients have
created entire Web sites to criticize specific physicians.
"The potential problems are huge," said Matt Messina, a dentist
in Fairview Park, Ohio, and a spokesman for the American Dental
Association. "My reputation is my stock in trade … and we work years
and years to build that reputation. To have that shattered potentially
[by an Internet posting] is a concern."
Patient advocates, meanwhile, say patients have First Amendment
rights to describe their experiences with physicians. "Blogs and
personal Web sites are no different than talking over the back fence,"
said Charles Inlander, president of People's Medical Society, a
patient advocacy group in Allentown, Pa. "Those who read it have
to take it with whatever grain of salt you would take, just like
a neighbor. It's too bad if doctors are insulted by this."
The 'Magic Laser Machine'
Dr. Boothe, who practices in the Dallas area, filed lawsuits
in a state court in Collin County, Texas, in January against the
disgruntled former patient, Dan Morikawa, and another man, Brent
Hanson, who runs a Web site called LasikFraud.
Dr. Boothe performed Lasik surgery, a form of laser-assisted
vision correction, on Mr. Morikawa in September 2004, according
to court papers. But Mr. Morikawa was unhappy with the results,
and demanded his money back, citing a guarantee in one of Dr. Boothe's
advertisements. Soon thereafter, Mr. Morikawa created various Web
sites in which he criticized Dr. Boothe. One Web page said, "All
these lives ruined by Dr. William Boothe, his magic laser machine,
and wild irresponsible advertising claims."
According to Dr. Boothe's suits, Mr. H***** republished allegations
by Mr. Morikawa on LasikF****.com. Mr. H*****, a 41-year-old software
developer, says he was a victim of bad eye surgery by another doctor
in the 1990s and uses LasikF****.com to warn others about potential
problems with the procedure.
Dr. Boothe and Mr. Morikawa reached a settlement, and a judge
also issued a permanent injunction barring any more Internet postings.
Mr. Morikawa's sites were shut down. A similar settlement was reached
with Mr. H*****, requiring him to delete certain material. Dr. Boothe
was also required to remove messages about the matter he had posted
in online forums.
Mr. Morikawa couldn't be reached. Mr. H***** declined to comment
on the case. Edward R. McNicholas, a lawyer for Dr. Boothe, said
Dr. Boothe was unavailable.
First Amendment Fight
Other doctors have not been successful in their attempts to get
negative information removed from the Internet.
In Palm Beach County, Fla., two dentists last November sued a
patient who had created a Web site called DentalFraudinFlorida.com,
seeking to have the site shut down. But they withdrew their complaint
last month, and the site remains online.
The patient, Elaine Prentice, criticized the dentists and others
whom she said were responsible for shoddy dental work. She also
posted information from a complaint she filed with the Florida Department
of Health; the complaint had been rejected for lack of probable
cause.
The two dentists who sued -- Leonard Tolley and Richard Kaplan
-- said in their suit that the Web site was created "to publicly
embarrass, humiliate or otherwise" harm their reputations. They
claimed Ms. Prentice had violated Florida law by posting confidential
information about a complaint to the health department, and asked
to have that information removed.
Paul Alan Levy, a lawyer for Ms. Prentice, said the dentists
withdrew their suit because it was "frivolous." Mr. Levy, who works
for Public Citizen, a Washington consumer group, had argued Ms.
Prentice had a right under the First Amendment to create the site.
Douglas M. McIntosh, a lawyer for the dentists, said they withdrew
the case because "we felt there was enough of a cessation of the
activity [the posting of information] that we could not burden the
court any further."
Ms. Prentice, however, said "no information on my Web site has
been altered or removed." The 41-year-old office manager for a construction
company said her Web site is designed to serve as "an example to
teach others."
Anonymous Critics
Meanwhile, several Web sites have emerged in the past year that
feature anonymous reviews of doctors. These sites differ from official
state medical-board Web sites that post background information about
licensed medical practitioners, such as hospital disciplinary actions.
One of the new sites, called NDDB.net, for National Doctor Database,
invites visitors to review thousands of doctors listed on its site,
but so far has collected only about 600 reviews. The owner of the
site is not identified and refused to give his or her name in an
email exchange, saying in part that the site is wary about potential
litigation.
Lawrence Hipshman, an Oregon psychiatrist who received a single,
negative review on the site, said the posting was "obnoxious." The
reviewer said he or she was treated "horribly" by Dr. Hipshman,
rated the visit as "awful" and would "never" recommend the doctor
to family or friends. A search on "Hipshman" in Google lists the
site first.
"We don't know anything about who this person is, or if this
person was actually a patient," said Dr. Hipshman, who is a professor
at Oregon Health and Science University. He said he doesn't plan
to contact the site's owner, but said he was concerned about the
site's practices. "There shouldn't be any attempt to create a profile
until there are maybe 100 reviews on a person," he added. (Aetna
Inc., the large health insurer, requires a minimum of five reviews
before posting patients' survey information in an online feature
it calls DocFind.)
DR.Oogle Inc., based in San Francisco, runs a free Web site that
features anonymous reviews on about 19,000 dentists. Submissions
are filtered for obscenities but otherwise are not screened.
The site says it "receives complaints and legal threats from
aggrieved dentists all the time." When legal threats are received,
DR.Oogle says it removes that dentist's information; reviews have
been removed for more than 100 dentists. One California dentist
in June sued a woman in part for comments she posted about him on
DR.Oogle. The case is pending in a San Diego court.
DR.Oogle recently received a subpoena for information about another
user and intends to comply, said Sasha Hershfield, the company's
chief executive. DR.Ooogle doesn't collect names or postal addresses
but does store a user's Internet protocol address -- a unique number
identifying a computer connected to the Web.
Another free site, RateMDs.com, of Sunnyvale, Calif., includes
ratings on about 11,000 doctors and lets physicians and others post
rebuttals. "We've gotten a couple of threats of legal action, but
nothing's come of it," said John Swapceinski, co-founder of the
site. The site reviews each comment before posting it and warns
users that "anything libelous will be deleted."
Trademark Tussle
Other patients have become embroiled in legal battles over trademarks
when they have created complaint sites that use a medical group's
name.
Bosley Inc., a large hair transplant provider, has sparred for
years with Michael Kremer, a former patient who complained about
a hair transplant performed by a Bosley physician. Mr. Kremer's
malpractice suit against the company in 1994 was dismissed. But
in 2000, he registered the Web site BosleyMedical.com, which features
criticism about the company.
The Beverly Hills, Calif., company, formerly known as Bosley
Medical Institute Inc., sued Mr. Kremer for trademark infringement,
among other claims. The U.S. Court of Appeals for the Ninth Circuit
in April agreed with a lower court's ruling that Mr. Kremer's use
of "Bosley Medical" didn't constitute trademark infringement because
Mr. Kremer wasn't using BosleyMedical.com for a commercial purpose.
"Kremer is not Bosley's competitor; he is their critic," the court
ruled. But the case is still pending because the appeals court said
the lower court erred on several other rulings, and it has sent
the case back for review.
