In the five years since he co-founded RateMDs.com, a site where patients rate their doctors, John Swapceinski has been threatened with lawsuits at least once a week. Not one disgruntled physician has
actually carried out his threats, Swapceinski tells MediaPost.
Indeed, it would be very difficult to sue the site for defamation, given that the federal Communications Decency Act immunizes
Web sites from libel cases based on user comments.
But, starting six months ago, the nature of the threats changed. That's when Swapceinski began hearing from doctors who said that
reviews on the site violated contracts with their patients. Apparently, some physicians are now
asking patients
to sign agreements in which they promise they won't review their doctors online.
In some versions of the contracts, called "Mutual Agreement to Maintain Privacy," doctors promise to
prevent patients from "unwanted marketing information" -- anonymous targeting by marketers -- in exchange for patients' promise to avoid posting negative reviews to Web sites. And, critically, the
contracts also assign the copyright in anything the patients write about their doctors to those doctors.
Now, when those patients post reviews to RateMds.com, the doctors have threatened
to sue Swapceinski for interfering with a contract and for copyright infringement. That latter allegation is especially critical because the federal Communications Decency Act doesn't immunize sites
from copyright lawsuits based on material submitted by users.
A company called Medical Justice has masterminded at least some of these agreements. The company, founded by doctor (and law
school graduate) Jeffrey Segal, has signed up 2,000 physicians nationwide. Segal tells MediaPost that the majority of them ask patients to sign the privacy agreements.
Segal says that the
company has had some success in convincing sites to take down reviews -- though Swapceinski, for one, tells MediaPost he hasn't yet removed any posts on the grounds that they violate the doctors'
copyright or interfere with doctors' contracts with their patients.
But even if some sites are caving, it's hard to imagine that a court would side with doctors here should a case ever
end up in litigation. Certainly there are strong public policy reasons why courts should decline to enforce contracts in which patients give up their right to publicly discuss matters of life and
death -- literally.
Certainly digital rights advocates are chomping at the bit to take on Medical Justice in court. When asked about the prospect of a review site defending a copyright
infringement lawsuit for posting a patient review, the Electronic Frontier Foundation's Matt Zimmerman had this to say: "I want that case."
