Thumbectomy: Five Tips From Ars Technica's Doctor Ratings Investigation
Doctors and dentists are attempting to give patients a thumbectomy - removing their ability to give a health professional the thumbs-up or thumbs-down on consumer review sites such as Yelp and Angie's List or even in personal emails.
Writer Timothy B. Lee used his personal experience at a dental office as a jumping off point to document this trend in a recent piece for Ars Technica. Here are my five favorite tips from his reporting.
1. Keep your personal life personal, until it matters to the public. Lee starts his piece by writing, "When I walked into the offices of Dr. Ken Cirka, I was looking for cleaner teeth, not material for an Ars Technica story." How many times do health writers visit a doctor or dentist and leave their notebooks behind? We feel that mixing our professional work and our personal health could have bad consequences, and it could.
But Lee saw something sinister in the way he was being treated as a new patient at a dental office. He knew that the form he was being asked to sign could be used to shut down criticism of dentists and physicians, and he quickly decided that there might be a larger story with wider ramifications. He never stopped thinking like a reporter, asking tough questions and taking notes of crucial details.
Lee wrote: "I had a long conversation with Dr. Cirka's office manager, who insisted that the agreement was not intended to censor the truthful reviews of Dr. Cirka's patients. Rather, she said, it gave Dr. Cirka a tool to remove fraudulent reviews. She said they were especially concerned about non-patients (such as competitors, ex-spouses, or former employees) writing fake reviews to damage Dr. Cirka's business. She didn't have a good answer when I pointed out that the agreement's text didn't say anything about fraudulent reviews. She also couldn't explain how the agreement could bind non-patients, who by definition will not have signed it."
2. Read the fine print. Signing a stack of forms has become so routine at medical offices that most patients - including most journalists - likely never read what they are signing. Also, your signature may be accomplishing many different things at the same time. You might think you are giving the office the ability to send a bill to your insurance company, but you may also be signing away your right to sue for malpractice (a well documented trend) or to even post a negative review about your experience.
Lee read the "mutual privacy agreement" carefully and shared with his readers what he found:
The agreement that Dr. Cirka's staff asked me to sign on that February morning began by claiming to offer stronger privacy protections than those guaranteed by HIPAA, the 1996 law that governs patient privacy in the United States. In exchange for this extra dollop of privacy, it asked me to "exclusively assign all Intellectual Property rights, including copyrights" to ‘any written, pictorial, and/or electronic commentary' I might make about Dr. Cirka's services, including on ‘web pages, blogs, and/or mass correspondence,' to Dr. Cirka. It also stipulated that if Dr. Cirka were to sue me due to a breach of the agreement, the loser in the litigation will pay the prevailing party's legal fees.
3. Pull back the curtain. If you notice a sudden change in the physician/patient relationship, it likely did not start with your doctor. Just as the movement to force patients to sign arbitration agreements started with lawyers and consulting groups standardizing forms and selling them to physicians, this movement has its roots in the legal profession.
Lee reports that "The agreement is based on a template supplied by an organization called Medical Justice, and similar agreements have been popping up in doctors' offices across the country." Medical Justice is in the business of selling legal strategies to health professionals. The group, run by doctors and attorneys, provides training, forms and legal advice. It seems well intentioned. Who wants a patient experience to end in a lawsuit? But the group is less than forthcoming.
Lee contacted Medical Justice founder and CEO Dr. Jeffrey Segal, and Segal said Medical Justice is starting a new program to encourage positive patient reviews. "When pressed for details about how the system worked, Segal was cagey, refusing to give us a demo or explain how patients interacted with the system. ‘I'd like to see what you write,' he told Ars. ‘If you write something that's reasonable, we'll give you more details.'"
4. Get to know HIPAA. There are few laws that are used to block reporters' access to information as often as the Health Insurance Portability and Accountability Act. The way the law is used, one would think it arose because of some journalism-induced crisis. It was not. As the name of the law implies, the law was a response to anxiety about health insurers using information about a person's health status to deny new coverage or to prevent future coverage. It also was a response to the way some health information was being used to market drugs and other products to patients.
Lee doubted the claim that the Medical Justice form made about HIPAA, and he consulted with Berkeley law professor Jason Schultz, who helped create a site called Doctored Reviews about this trend. Lee wrote that the mutual privacy agreements:
promise not to exploit a loophole in HIPAA that allows doctors to sell patient information for marketing purposes. But Schultz said that loophole was closed several years ago. Which means that recent versions of the Medical Justice agreement (including the one I was asked to sign) are lying to patients when they promise more protections than are offered under federal law. The Medical Justice website still claims that patients are ‘granted additional privacy protections' under the law, but doesn't elaborate or back up this claim.
5. Outsource. In a follow-up piece, Lee wrote about how five-star reviews of doctors have been appearing on review sites, all of which trace back to Medical Justice. For a reporter to try to figure out how many reviews on a given site could be linked to suspect IP addresses would be time consuming, if not impossible. So Lee asked Yelp for help. "At our suggestion, Yelp reviewed its logs and found that those same six IP addresses had also been responsible for numerous favorable doctor reviews on Yelp."
This was bad news for Medical Justice:
Yelp spokeswoman Stephanie Ichinose was also critical of Medical Justice's activities. She told Ars that reviews originating from Medical Justice IP addresses had been removed for violating the Yelp terms of service, which state that ‘you may not impersonate someone else, create or use an account for anyone other than yourself [or] provide an email address other than your own.' She also touted Yelp's review filtering system, which she said had automatically detected and blocked many of the Medical Justice submissions before the manual review was conducted.
Photo credit: Charles LeBlanc via Flickr