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New website exposes move to squelch patients' online reviews

Wednesday, Apr. 13, 2011

SANTA CLARA and BERKELEY, CA, April 13, 2011 —Some U.S. doctors are using a questionable legal strategy to restrict patients’ rights to post online reviews about their medical care. In response, Santa Clara University’s High Tech Law Institute and UC Berkeley Law School’s Samuelson Law, Technology & Public Policy Clinic have created a new website, doctoredreviews.com, to expose the legal and ethical risks of restricting a patient’s right to free speech.

A private company, Medical Justice, has been marketing a contract to doctors designed to give them the legal right to expunge critical online comments. The company, originally formed to ward off malpractice suits, says the contracts give doctors the right to remove patients’ posts on sites like Yelp or Angie’s List— even if the comments are truthful and accurate.

“This practice poses a grave threat to the integrity of online consumer reviews,” said Eric Goldman, director of Santa Clara University’s High Tech Law Institute and a former general counsel to Epinions.com. “Doctors are trying to misuse a loophole in copyright law so that they can suppress any patients' reviews they don't like.”

Patients are typically asked to sign the contract before they first see a physician—often as part of a thick stack of other paperwork. As a result, patients may not realize that they’re relinquishing their rights to review the doctor. The contracts also promise greater privacy, but patients are already protected under federal and state information privacy laws.

“Doctors who use these gag-order contracts are essentially telling patients ‘if you want medical care, you must sign away your right to free speech,’” said Jason Schultz, co-director of Berkeley Law’s Samuelson Law, Technology & Public Policy Clinic. Schultz says this may be counterproductive for both patients and physicians, as many patients now want to see reviews—both good and bad—from other patients before choosing a doctor.

Rather than remove reviews from patients, doctors may publicly respond to negative reviews, said Schultz, as long as they maintain their patients’ anonymity. “More speech is the answer,” he said, “not censorship and copyright abuse.”

Schultz said the contracts could violate consumer protection laws and medical ethics rules, by using deceptive language and by putting a doctor’s financial interest ahead of the patient’s.

The doctoredreviews.com website delves into these issues in more depth with information for patients, doctors, and online review sites. The site includes:

* Copies of the anti-review contracts.
* Suggested responses for patients asked to sign anti-review contracts.
* Material for doctors on why these contracts may be bad for business.
* Information for online review sites on why they do not need to honor takedown notices from participating doctors.
* Details about existing federal and state health information privacy laws that protect patient confidentiality.

Media Contacts:
Deborah Lohse |  Santa Clara University | 408.554.5121 |  dlohse@scu.edu,
Susan Gluss | UC Berkeley Law |  510.642.6936 |  sgluss@law.berkeley.edu

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