If pro is the opposite of con, what is the opposite of Progress?


It’s an old joke, but, what exactly did Congress just do?

By unanimous consent, it passed the Consumer Review Freedom Act (H.R. 5111). As of this writing at year end, it still needs to be signed by the President. But, there’s every indication President Obama will sign the bill just prior to leaving office. And, it will likely become law.

The law, when enacted, would make unenforceable form agreements consumers (or patients) are asked to sign prior to receiving treatment if the agreement prevents such people from posting about their experiences online. Further, the law would enable the Federal Trade Commission and/or State Attorney Generals to act. In particular, the law would empower the Federal Trade Commission to file an action for violation of a rule defining unfair or deceptive act or practice under section 18(a)(1)(B) of the Federal Trade Commission Act. This means fines and penalties.

What the law does not address:

Some practices will occasionally refund money (or perform extra services gratis) to an unhappy patient. Here, the doctor expects that the patient will not then turn around and vent their spleen on the internet. That’s a reasonable expectation. And, it is often memorialized in a written agreement. The Consumer Review Freedom Act does not address individualized bargained-for agreements. It only addresses take-it-or-leave-it upfront form agreements.

In 2007, Medical Justice tackled the issue of online defamation head-on. We were the first to question the value of online commentary in healthcare. Initially we WERE skeptical. We advocated for web anti-defamation agreements. And we made such template agreements available to our members for use. Those agreements varied in terms of what they allowed. Initially, they mandated against all online commentary unless the doctor gave his approval. Later, the agreements allowed reviews to be posted, but, the copyright to that review would transfer to the doctor, giving him the only substantive remedy available to remove a false or fraudulent post.

In 2011, Medical Justice continued this skepticism that reviews tracked the things that mattered most to patients – namely safety and clinical outcomes. We assumed they mostly addressed the softer aspects of a practice – bedside manner, communication, money, parking, etc.  We believed that patient reviews were even worse than no information. To analogize, Mark Twain once said, “If you don’t read the newspaper, you’re uninformed. If you read the newspaper, you’re mis-informed.”

So, we studied it.

We obtained a list of the best and worst surgeons, based on proxies for patient safety and clinical outcomes. We were blinded as to which surgeon was in which list. Then we went to the Internet review sites to see what patients wrote about these doctors.

When we unblinded the results, we learned our assumptions were wrong. The best surgeons had the best online reputations; the worst surgeons had the worst online reputations. The correlation was strong.

That’s not to say that good surgeons had some bad reviews, and vice versa. But, even the Ritz Carlton gets an occasional bad review – and they learn from it.

So, we did two things.

One: In 2011, we retired the online anti-defamation template agreements.

Two: The same year, we launched eMerit as a platform to help doctors not be defined online by two angry patients with a megaphone. We wanted to make it easy for doctors to be defined by scores, if not hundreds, of their patients. A more honest and accurate representation. A point-of-service review capture system.

The solution to pollution is dilution. The two angry patients will still be there. But, they will not have a “heckler’s veto.” Other voices will be heard.

If you are still using the web anti-defamation templates we retired in 2011, now is the time to dust the cobwebs off your old forms and revisit. We sent emails to all Medical Justice members in 2011 and 2012 about our change in philosophy. Given the Consumer Review Freedom Act that, as of this writing, is about to be signed into law, now is the time for you to retire them – if you are still using them. The better solution to managing your online presence is eMerit. And, we have 5 years of track record to support that.

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