Bioethics Discussion Blog: The Angry Patient (2) and the Internet

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Saturday, October 22, 2005

The Angry Patient (2) and the Internet

What about angry patients expressing their feelings not solely to the doctor involved but broadcasting it to the world on an Internet Web site? This is happening, as documented in a Wall Street Journal article of September 14, 2005. This behavior by patients has led to various libel lawsuits. As noted in the article there are, of course, two views of the issue:


"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."


If a disgruntled patient is asked by a neighbor for a recommendation for a doctor, specifically the patient’s doctor, is it slander to tell that neighbor about the patient’s own unhappy experience? If it is part of our right to free speech, then is this act just as permissible if same description of the doctor is displayed on a Web site? According to the Columbia University Press Encyclopedia, “In recent years, the U.S. Supreme Court has allowed that only factual misrepresentation is to be considered libel or slander, not expression of opinion. It has also ruled that libel suits may be filed across state lines, not only in the state where the plaintiff lives.”

The law is one aspect but what about the ethics? Is it ethical to “spread the word” of one’s personal anger. Well, the way I would look at it would be all about intent. If the intent was to present to others only the facts about one’s own personal experience with a physician and not to generalize about how that physician might behave with another patient or to demean or degrade the physician then this act might be ethical. However, if the intent is specifically to do damage to the physician and his or her practice, this would be maleficent, unjust and therefore unethical. What do you think of an angry patient expressing personal discontent on the Internet? ..Maurice.

8 Comments:

At Wednesday, November 09, 2005 5:28:00 PM, Anonymous Anonymous said...

Interesting question...

 
At Tuesday, January 17, 2006 10:36:00 AM, Anonymous Anonymous said...

The internet gives power to the consumer and in America - consumerism IS what keeps America strong.

If a doctor sues a patient for speaking their mind then I would never see such a doctor even if that doctor WON their case.

Besides, what is in the medical records is controlled by the doctor and hospitals and nurses. The patient has very little control over what goes in the final record. Doctors sometimes don't finalize their records until after the patient is discharged. If the patient desires to create their own version of their medical record or "experience" if you will - then so be it.

We had that experience where the medical record did not reflect what happened in the hospital and attempted to paint someone as crazy. Were they building their own case against future liability?

If the doctor doesn't like what is being said on the internet - then the doctor can refute the claims on the website and put his story out there and let the public decide who is telling the truth.

Open debate is healthy debate!

Sincerely,
The Angry Patient

 
At Thursday, June 22, 2006 6:23:00 PM, Blogger g said...

Open debate is health, but what about the angry patient who sends letters to insurance companies and the medical board with the express purpose to "punish" you and your reputation?

 
At Thursday, June 22, 2006 8:52:00 PM, Blogger Maurice Bernstein, M.D. said...

The intent of a patient in communication with insurance companies or medical boards should be to provide factual information about physicians misbehavior. The intent of the patient should not be to "punish" but to inform but to do so by legal means. Use of the internet for a trial by the public regarding a conflict in the doctor-patient relationship is not a legitimate trial. Only the boards, with legal due process, can in response to a patient's complaint, investigate and if misbehavior is confirmed, the boards will then punish those doctors by limiting their practice, fines or termination of the license to practice medicine. Only the courts after a malpractice claim is filed by the patient, with legal due process, can decide fairly and legally if a physician is guilty of malpractice. These are the proper approaches when misbehavior or malpractice is suspected by a patient and their use should be encouraged. ..Maurice.

 
At Saturday, July 08, 2006 5:33:00 AM, Blogger iblogger11 said...

June 29, 2006
Obeying a Takedown Letter a Binding Contract
Filed under: Uncategorized — nickdaly @ 12:16 pm
TechDirt reports today on a vexing case out of Pennsylvania dealing with contract, defamation, and website take-down letters. Apparently, the Pennsylvania Supreme Court of Philadelphia believes that obeying a take-down letter constitutes a binding contract and any reposting of the material constitutes a breach, despite any legal justification for posting the information at issue.
The case deals with Dominic Morgan, a Philadelphia man who had Lasik surgery in 1998 and whose doctors, Herbert Nevyas and Anita Nevyas-Wallace, he later sued for malpractice because he was left legally blind and was awarded only paltry damages. Still unhappy, Morgan started www.LASIKsucks4u.com on which he wrote about his experience and dissatisfaction with his doctors. The Nevyas sent Morgan a letter claiming his site was defamatory and demanded that all references to them be removed from the site (if he did, they promised not to sue). As almost every lawyer would recommend, Morgan immediately removed the material at issue and proceeded to seek advice from a lawyer about the letter. After determining that the Nevyas’ claim of defamation was weak, Morgan reposted the material and the Nevyas sued.
In April, the court found that
The parties had agreed that in exchange for the Nevyas’ agreement to refrain from filing a lawsuit against Morgan for Defamation, Morgan would remove all defamatory statements from the site and refrain from doing so in the future. This Court found that Morgan agreed to this, even providing proof to the Nevyases of his agreement and compliance therewith… Essentially the Court found an offer, acceptance, including Morgan’s compliance with the agreement to alter the web site, removing the Nevyas name, and consideration. Nevyas v. Morgan, No. 946, 2006 Phila. Ct. Com. Pl. LEXIS 203, 3 (PA. 2006).
So Morgan’s act of reposting the alleged defamatory material, though its defamatory nature was never discussed by the court, constituted a breach of contract between Morgan and the Nevyas.
Morgan is being represented by Public Citizen and has just filed his appeal (read here). The appeal notes that not only did the correspondence between Morgan and the Nevyas not constitute a contract to not criticize the Nevyas, but that finding that it does is an impermissible waiver of Morgan’s free speech rights. At some level, Morgan’s criticisms are mere accounts of what factually happened to him and as such he has every right to report that info to the public. A fair and true report would not be defamatory, but the court never bothered to address the issue in basing its decision in contract.
As Public Citizen’s press release regarding the appeal points out, it is common practice for companies to threaten companies and individuals with take-letters in response to legitimate criticism and just as common for the information to be removed to avoid costly litigation. If abiding by a take-down notice is determined to be a binding agreement, essentially an admission of guilt, such a practice could create numerous problems. The time it takes for an individual to consult with a lawyer may create an undue delay, creating more severe penalties in the event of a lawsuit. Further, because of the immediate need to respond to a take-down letter, legal advice might be hurried and less than thorough. It could lead to information being removed in order to prevent litigation, and because such would create a binding contract, free speech would be greatly infringed upon because, in essence, even a retraction and a correction would be a breach.
The decision could also increase the number of people who flat out reject take-down letters, since they might be less likely to remove the disputed information if they feel that common sense and justice should be on their side. Being up against a wall like this, more people might feel obligated to fight the take-down request, causing headaches for those sending out the letters, and in a round about kind of way might actually decrease the number of such requests issued. As of now, it makes sense for companies and people to send out frivolous take-down notices because the costs are low (most people take the stuff down). If more people fight the letters, costs will escalate, and those that issue such letters might be forced to pick and choose their battles more carefully. This would not be such a bad result.
Interpreting the situation as one creating a binding contract ignores the strong first amendment argument that would hold this kind of expression as protected. To make an end run around the first amendment by characterizing this as an offer and acceptance is most troubling, and likely (I would hope) an argument that will be rejected on appeal.

 
At Friday, December 29, 2006 5:37:00 PM, Blogger Maurice Bernstein, M.D. said...

The Comment below was posted today December 29, 2006 by Matt Jasper. I have removed the original posting and replaced it below, only identifying names have been edited out. Though I realize that the issue of whether it is proper to make critical comments of a personal nature on the internet is the very issue this thread is attempting to explore and some might find naming names appropriate and others find it inappropriate, as moderator I am against the practice on my blog. My argument is that this is a discussion blog and if a hospital or individual doctor or clinic is criticized without the opportunity for a timely response, allowing publication is wrong--unless the posting is simply a presentation of facts already in the public domaine, having been already disseminated in the media. I hope everyone understands my view. Those who are interested in the names of the parties need only contact Matt at the contact information he gave at the end of the posting. ..Maurice.



Angry Patient:


Delivered November 2, 2006 at [Hospital A]Annual Diabetes Dialogue. Room of 70. Handed text of rant to the visiting Joslin Diabetes Center (they just established a satellite program at [Hospital A.]) lecturer on my way up. Noticed the podium unattended w/ mike still on. Full reading to attentive crowd. Fine accoustics. Applause. No interruptions or security goons. It'll be worth the lawsuit.

(speech below)(I paused in middle & end to say that the actual program presented was excellent and that I had no criticism of the diabetes educators present)

When I was finally diagnosed with type 1, late-onset diabetes, I met with a diabetes educator here and found her to be quite helpful. I appreciate that many here do excellent work in diabetes education and treatment. However, the most crucial part of diabetes treatment is the initial diagnosis that then allows treatment and education. Unfortunately, the symptoms of diabetic onset are often confusing and intermittent as the body adjusts to a malfunctioning pancreas.
When I presented with diabetic symptoms, they went unrecorded, unrecognized, untested for, and untreated. When I finally self-diagnosed with diabetes the following year, I was literally yelled at for doing so. My doctor told me my symptoms were impossible. He said I was too young and fit for type 2 diabetes and wasn’t a child, so of course it couldn’t be childhood-onset diabetes. He smirked at me when I used the term “polydipsia” and fought my self-diagnosis aggressively.
Because I’d been fasting on and off for two weeks to control my overwhelming thirst, I told my doctor that a fasting blood glucose test would be meaningless. I happened to know of a test that showed average blood sugar over several months. When I requested this, my doctor twice promised to add the A1C test to my bloodwork form that he then gave to his lab directly, without my having seen it. Though I later found out that the A1C was not given, I was told that my A1C test was normal. This so-called “normal” result finally convinced me that I was not diabetic. I began to eat normally again. My thirst returned, was intermittent, and then turned into depression, irritability, and fatigue. I went untreated for two more years and had organ damage, vision-loss, e.d., and autonomic neuropathy as a result. I lost my marriage and nearly lost my life. I will die early as a result of my non-treatment. I have four young children to raise, drive to violin lessons, and apologize to for the turmoil they’ve endured as a result of my poor health.
I requested my medical records shortly after my final self-diagnosis that another doctor quickly agreed with. By then, my symptoms were overwhelming and my fasting blood sugar was 799.
Though two years earlier, I’d reported having every diabetic symptom that I know of, none of this--except thirst my doctor attributed to coffee--appeared in my medical records when I finally saw them. I can even prove that the two records where I reported diabetic symptoms were temporarily missing from my medical file because a phone record in my file records that I was told I had never reported thirst and had only been seen three times at [Clinic B.]. I was seen five times at that location.
An administrator here said my doctor was under peer review and that CIGNA had ordered a mandatory diabetes training in response to my complaint. She said she completely believed me after I told her my story of aggressive and deceptive non-diagnosis. Why did she believe me? Because at least one other diabetic has complained to a department she supervises. I am in touch with her and other complainants to such a degree that I wonder why [Doctor C.] continues to practice. I have had no apology from this hospital. Most contacted [Hospital A.] employees now officially deny that anything improper happened.

My question is this: At what point does a hospital’s responsibility to protect the community become greater than its desire to protect the doctors it employs? I know that you may not be able to answer now, yet I believe the community has a right to know that my question exists.

My name is Matt Jasper. I will provide my medical record and supporting documentation to anyone who wants it. I believe there may be a person in this room who knows that [Doctor C.] held the inaccurate views about diabetic onset that I have described above. I urge you to truly improve this hospital by reporting your information to the State Board of Medicine.



Matt Jasper
603-781-1045
mattjasper555@hotmail.com

 
At Wednesday, June 27, 2007 3:29:00 PM, Anonymous matt Jasper said...

This is a fascinating topic. I can appreciate a range of the very well expressed opinions here yet I'd like to counter the idea that a malpractice court is the best or only way to deal with issues like the one I reported above.
Many lawyers have mentioned (to me and on the internet in general) that medical malpractice cases where probable damages are under $200,000 are difficult to justify taking in terms of time to potential benefit ratio.
I don't blame the lawyers, as they generally have to operate profitably to stay in business. However, I think all should take a look at the effect on the average middle class family of health-damaging negligence. For me, it has included organ damage, autonomic neuropathy (which correlates with a decreased lifespan) vision loss (temporary), erectile dysfunction, and a bunch of incidental benefits such as depression, anxiety, the end of my marriage (with associated expenses), and falling asleep while driving & stumbling around with a high-blood-sugar-induced lack of insight as I attempted to live my life,roof my house, etcetera.
I could forgive simple error, yet this is a case where what I clearly recall happening and what is recorded in the medical record bear little similarity. The issue is compounded by a policy (check the contracts signed between docs & malpractice insurers) of cutting off communication and actively lying to patients.
Though it was staggeringly obvious that my medical records had been cooked (If you doubt it, I'll mail them to you in a heartbeat), the rather intangible nature of diabetic injury combined with an absence of absolute proof (precisely because the medical records had been cooked) left me with no adequate way to respond or retain representation. I believe that the negligence shown in the original"disappeared' records could have gotten me legal representation or at least the satisfaction of a real state medical board action.

I also believe a bias unfolds during peer review & state board review by peers. The NH Board letter to me states that they may or may not have issued a letter of correction. To me, this is inadequate. A minimum level of response should have been a citation for a record keeping error. Training in ethics or diabetes would have been nice.
I am concerned that no meaningful advocacy is available for those in the sub-200k gray area. We are left to speak and sputter from a position of stress and rage. I have absolutely made stupid statements and made small mistakes and left enough voice mails to risk being seen as irrational. At which point, it is easy to point at the enraged patient and award a preponderance to the cool and well-counseled physician.
I strongly agree with Dr. Albert Wu's excellent article: Removing Insult from Injury: Disclosing Adverse Events. I am interested by recent books such as HOW DOCTORS THINK & Medical Errors and Medical Narcissism. I am trying to approach this matter as one of policy, as one of decreasing the chances of future occurrence for others.

Media coverage re: this issue is low. Marie Skelton of USA TODAY was doing an article ( interviewed me and others/ felt that my records were an excellent example) on missing medical records yet I believe the article was killed after legal review. It would seem that it just isn't good for the business community for such issues to be aired. For example, local papers would never touch it or they'd lose advertising.

 
At Friday, December 19, 2008 4:34:00 PM, Anonymous Anonymous said...

I've had a bad experience with a new dentist. It looks like he performed an unnecessary dental procedure on one of my children and wanted to schedule a follow-up appt to do more. After we questioned why further treatment was necessary, he changed his tune and instructed his receptionist not to make the follow-up with no explanation. I believe he did this because there was nothing additionally wrong (& not anything wrong to begin with). Further, his offc did not bill our insurance carrier after requesting a deductible pmt in cash the day of the appt. I'm going to report this to my state dental board for resolution. I'm now saddled with a very large bill that I cannot afford. It appears we were deceived on the necessity of this treatment. I'm going to see what action the state board takes in this matter. If not resolved to my satisfaction, I'm considering picketting his office. I know this works well with retailers who do not honor their contracts, but I don't know of anyone who tried this with a dentist. I've lost all faith in the dental profession. Its a shame that greed dominates this profession. Either you run into someone like this or a dental firm with excessive marketing. I don't plan to go to the dentist anymore unless it really hurts.

 

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