By Kristin Billera

Your doctor may soon be asking you to waive your right to criticize him or her on the Internet. Medical Justice, a company that purports to protect doctors from frivolous lawsuits and protect their reputations is encouraging doctors to preempt anonymous criticism from patients on blogs, rating websites, and forums. The organization is suggesting that doctors require their patients to sign agreements not to criticize the doctor on the Internet.

According to Dr. Jeffrey Segal, the company’s founder, who is quoted by the Associated Press, anonymous ratings of doctors often do little more than hurt the reputation of physicians, especially if they are more about the doctor’s demeanor than his medical expertise. Physicians are able to purchase a membership with Medical Justice, which includes the standardized waiver as well services which include regular searches of “rating web sites for compliance ” and notification to “sites to remove posts on member physicians.”

According to the Medical Justice website, the company is not advocating a true gag order, saying that these agreements leave patients free to “about their treatment with friends, family, other health professionals, hospitals, licensing boards, attorneys, civil court, and more…”

However, despite the fact that this is not a gag order that prevents all speech, it preemptively prevents enough speech to arouse concern. Medical Justice claims to protect doctors from libel and defamation, however, some of the comments cited for example in the Associated Press article are merely opinion about the doctor’s demeanor and proving libel would be problematic. How could it be proved as a matter of fact or not that a doctor is “arrogant?” It’s a matter of perception and suggesting that such comments are libelous can only be detrimental and could lead to ordinary citizens becoming tied up in litigation.

It’s not clear if such agreements would be upheld in the courts. According to the AP article, attorney and Northwestern University professor Jim Speta, who is an Internet law specialist said, “‘Courts might say the balance of power between doctors and patients is very uneven’ and that patients should be able to give feedback on their doctors’ performance.”

Also, this week, a Maryland Court of Appeals ruled that website owners did not have to disclose the identities of anonymous posters who made negative comments about local businesses on a forum. If other courts follow the Maryland court’s approach, doctors may not be able to find out who is behind anonymous negative comments, rendering the waivers useless.

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