Jeffrey Segal, MD is still the vendor of the Medical Justice Malpractice Plan, although it is no longer accompanied by a Gag Contract to discourage patients from posting reviews on the web. A ‘Reputation Management’ package is still part of the Segal package, but it has turned 180 degrees, and now takes the form of a Patient Satisfaction Survey which encourages, and actively collects, patient reviews. The Survey operates with well-oiled machinery, certainly. But did Segal really reinvent himself – or just become more artful?
The article below discusses one chief facet of the Patient Satisfaction Survey, namely the method for identifying patients who enter a review into the system. This is a Tuum Est series in progress: future pages will cover other aspects of the Survey and medical rating sites in general.
On his website, Segal displays three video testimonials from physicians who purchased and use his Patient Satisfaction Survey. One of the MDs, facial plastic surgeon Dr. Eric M. Joseph, is leveraging Yelp in a way relevant to our discussion. Compare the screenshots below:
Despite the real possibility that the patient ID was an alias, Dr. Joseph brushed off the critique with this simplistic reply: “We have no patient with this name in our records.”
Patient pseudonyms are common on review sites, yet Dr. Joseph side-stepped this critique as well with the same simplistic reply: “We have no patient with this name in our records.”
Patient: Passaic, NJ
A day later, Healthgrades posted a review identical to Nick's. This time he used no alias, just his location. Dr. Eric Joseph, in a tacit admission this was indeed his patient, replied: “We would like the opportunity to discuss your case.”
Segal advertises his Patient Survey largely through the three video testimonials mentioned above. To assess the qualifications and quality – or their lack – in the physicians showcased in these videos, we continue onward with Dr. Eric M. Joseph. His performance on Yelp is germane since he embodies the ecosystem of the Patient Survey, its credo and mechanisms.
Tuum Est takes the negative reviews on Yelp very seriously. First, the patient Nick indeed used an alias; an entry on another site, Healthgrades, substantiates that Nick was a real patient treated by Dr. Joseph. Second, despite the emotion from the patients, the content of their reviews is sound. Tuum Est looks askance at the expanded replies from Dr. Joseph to Patient Nick and Patient Paula, where the MD offers deceptive apologia for the modern-day injection of liquid silicone. The fact is, silicone injections have a long history of risks, including infections. Evidence:
“The debate over the legitimacy of silicone for soft-tissue augmentation has spanned well over half a century. The literature is replete with disastrous outcomes following silicone fluid injection, often many years after the initial treatment.
Source: Plastic & Reconstructive Surgery 2007; 120(7)
Every few months, the news has another story about disastrous silicone injections. Usually the patient gets a terrible infection, and many go on to develop chronic problems. The worst part of silicone injections is that there is no treatment or way to remove the silicone once it has been injected under the skin. The perpetrators are invariably lay people or doctors who have no training in cosmetic surgery.
Source: Tavallali Plastic Surgery
Though tantalizing to some consumers who would prefer to pay for fillers once, rather than shell out for repeat procedures, such fillers have also been known to lead to a number of complications, including irreversible binding with tissues and a tendency to ‘drift,’ which can lead to a distorted appearance.
Source: ABC News: Cosmetic Procedures You Should Avoid
As the example above shows, it is imperative not to disdain a review just because the patient ID was an alias. From the start, medical rating sites were built around anonymity. The trend-setter RateMDs went online in 2004, quickly followed by Yelp. The idea of pseudonyms for patient reviews won solid approval in American courts, and was backed by the media and by medical journals. A sampling is below, led by the most respectable precedent imaginable:
Historical 1787 – During the debate to ratify the Constitution, three men (Alexander Hamilton, John Jay, and eventual U.S. president James Madison) anonymously published essays known as the Federalist Papers under the pseudonym ‘Publius.’ Essays in opposition helped establish the Bill of Rights; most were written under pseudonyms such as ‘Brutus,’ ‘Centinel,’ and ‘Federal Farmer.’
RateMDs 2004 Onward – Question: Why do you allow people to post anonymously? Answer: The United States Supreme Court held that anonymity of speech is protected under the First Amendment. USA courts have consistently recognized that the right to speak anonymously extends to speech on the Internet.
Doe v. 2theMart.com 2001 – US District Court: The Internet is a truly democratic forum for communication. It allows free exchange of ideas at an unprecedented speed and scale. Thus the constitutional rights of Internet users, including the First Amendment right to speak anonymously, must be carefully safeguarded.
Doe v. Cahill 2005 – US State Supreme Court: Many cyberspace discussions employ pseudonyms. The audience must evaluate a speaker's ideas based on words alone. Public debate in cyberspace becomes less hierarchical and discriminatory than in the real world because it disguises status indicators such as race, class, and age. There is a sudden surge in John Doe suits, filed merely to unmask the identities of anonymous critics; soon after, the lawsuit is dropped and extra-judicial self-help remedies ensue of revenge or retribution. The Court will protect anonymity.
Boston Globe 2006 – Rating Sites Flourish Behind a Veil of Anonymity: The sites rely on volunteer moderators to delete ratings that violate their guidelines, such as … information identifying the rater. Anonymity for online users is ‘absolutely vital to allowing the Internet to function as it does,’ said an attorney with the Electronic Frontier Foundation. ‘You couldn't have services like ratings sites without it.’
British Medical Journal 2008 – How Patients Rate Doctors: No information about the person who made the rating is revealed to doctors or other consumers.
Signature Mgt Team v. John Doe 2017 – US Appeal Court: If an anonymous writer can show that he or she engages in substantial protected speech that unmasking will chill, the writer can maintain anonymity even after losing a defamation suit.
Status in Canada 2018 – Inconsistent law across provinces: The Saskatchewan court in Houseman v. RateMDs SKQB 2017 granted dentist Dr. Houseman a Norwich Order to unmask the writers of all six negative reviews about him on RateMDs. But other provinces balance two tests, the Norwich Test and the Wigmore Test (these weigh the need for pre-action discovery, against the right to privacy). In Ontario, anonymity prevails. See for example 1654776 Ontario Ltd v. Stewart 2013 ONCA. The Law Commission of Ontario leads a major project to reform internet law.
Segal's stance on patient reviews is symbolized in his choice of business trademarks:
Dr. Jeffrey Jonathan Segal had to answer two malpractice claims in Indiana (in 1996 and 2001). This was what propelled him to design Medical Justice Services, Inc., a malpractice plan he sells to American physicians. The plan is now tooled with eMerit, which is his Patient Satisfaction Survey. The program descriptions:
Well, now. In regard to eMerit: how do patient reviews connect with risk-mitigation? Risk of what? In this context, risk of negative reviews. And the sole way MDs can mitigate that risk is to seize control of the review process. eMerit does that slickly. All the reviews are collected and posted from the doctor's own office, rather than from the patient's computer at home. Segal shamelessly coaches his member-doctors to cherry-pick which patients to ask for reviews:
“Our members survey patients on their own time and when they trust it's the right time to ask for feedback: the moment a patient knows he's received high quality care – when he's back on his feet, or when she knows she looks ten years younger, or when she knows she and her husband can finally celebrate a healthy conception. The practice decides who is surveyed, when, and how often.
Typically, reviews are collected at the point-of-service (in the doctor's clinic). Segal supplies each member with an iPad pre-loaded with the eMerit application, which connects directly to website PatientSatisfaction.org. Patients are handed the iPad, and when they complete the survey-form, it is uplinked automatically to that website for evaluation. If the Account Manager decides the review is positive, it is posted simultaneously to a dozen rating sites on the web.
Eric Goldman, director of Santa Clara University's High Tech Law Institute, warns that doctors can easily spike a negative review (suppress or block it) on the eMerit system. Patients may sense this, and opt out of eMerit, instead writing their negative review from a home device. Motivation: The patient may feel constrained with clinic staff shoulder-surfing while the review is done; or a patient may not want their facial expressions recorded by the iPad's front-facing camera while they think out their answers; or a wary patient may simply want to retain autonomy.
Not always, but with high probability, patients will sign a negative review with an alias. That is proper, and has a reputable tradition. Considering the chaos in today's rating ecosystem, however, an alias leaves the patient vulnerable to a response of “No patient with this name is found in our records.” The patient, to protect him or herself, should take a basic pre-emptive step:
If you sign a critical review with an alias, add a short statement such as: ‘My ID is an alias, thus will not appear in the clinic records.’
That step is advised for all critical reviews, whether they are submitted from home or from an iPad at the clinic. In the latter case, patients would be entitled to think “But my doctor saw me submit the review!” Using an alias leaves a loophole, and many a physician has taken advantage of it – grasped it with alacrity in fact – as a means to publicly dismiss or discredit a negative review. The case of Dr. Eric M. Joseph above is just one compelling example.
Segal invites the public to take his Patient Survey for a test drive. But the Public Demo is missing three screens. Two of them (Office Setup, and Review) are administrative in scope, required for a real-life Survey but not for analysis. The third missing screen, however, is significant: It controls how patients are identified when their reviews are posted to rating sites on the internet.
This screen is titled Authorization, and its sole purpose is to ask the patient: “May we use your real name, your initials, or an alias when we post your comments to internet rating sites?” The screen is pictured below. Follow Segal's logic:
Methods to obtain the eMerit Patient Satisfaction Survey for analysis and review:
Visit the Segal eMerit webpage Collect Patient Reviews, and look for the section titled Take our Survey for a Test Drive. Fill in the form with your name and email address. You may omit your phone number (it is optional). For medical specialty just choose ‘Other’. Click send. You are promptly sent a link plus a Demo Access Code.
This version is interactive, but not complete: three out of eleven screens are missing. In our testing, the Demo Code worked for ten days.
Visit the PatientSatisfaction.org site directly. A screen appears titled Office Setup and Authentication. Fill in the first box only, which is labeled ‘Authentication Code’. Enter the Demo Access Code emailed to you for the hobbled Public Demo. In our tests, the identical Code worked here for ten days – and we saw all eleven screens.
If you cannot access the Full Interactive Demo, or if your interest is milder, then you may read the full set of eleven screens in PDF format here.
On the Authorization screen, when you request an alias, in some cases you are given a first name and the initial of a surname; other times you are given the reverse (initial of first name, plus full surname); and sometimes both a full first name and full surname. In our test, 30% of the names were ethnic (when compared to North America). The names are very realistic sounding, giving rise to this question: How does Segal ensure that an alias does not accidentally match a real name?
For our test we requested ten alias names in a row, over seven minutes, from the same IP address. Our results are below. Click on an alias name to view the originating screen:
Tuum Est - It Is Up To You
With a name like yours, you may be any shape, almost.
If you post a negative review under an alias, it is good policy to state in the review that you are using an alias. Otherwise you hand the MD an opening to brush off your review.
In good conscience – at least superficially – the MD can post a public reply on the rating site to loudly proclaim: “No patient by that name ever visited our office.”
This occurred twice on a single page of Yelp with surgeon Dr. Eric Joseph (article, left). This pattern repeats, with little variation, on many medical review pages and sites.
The gambit is attractive to doctors because it is the perfect ‘way out.’ The doctor can reply to the review while still conforming to HIPAA: Confidentiality is not breached as long as the doctor does not post online any personal information about the patient's care and treatment.
Negative reviews contain valuable feedback, especially if detailed and concrete. Patients deserve to have their words taken seriously, not brushed off through artifice.
When you post a review it is entirely your choice whether you identify yourself via your name, your initials, an alias, or even just a location. An alias is a common choice, a good choice – but bolster it with a protective step.
Anonymity: a shield that allows speakers to express controversial or unpopular views, while focusing the ensuing debate on the substance of the speech rather than the identity of the speaker.
The U.S. founders believed that anonymous speech was a pivotal tool to foster public debate. Although anonymous speakers do not enjoy an absolute right to keep their identity secret, they cannot be unmasked without good reason.
The First Amendment acts as a bar against vexatious litigation filed merely to silence, harass, or intimidate anonymous speakers.
U.S. Courts say: Unmasking pseudonymous speakers diminishes the free exchange of ideas guaranteed by the Constitution. Three harms caused by unmasking:
At minimum, unmasking can hinder efficacy because it directs attention to the speaker's personal life, rather than the substance of his or her ideas.
Second, unmasking leaves the speaker, and possibly the speaker's family, vulnerable to reprisals such as public shaming, threats, harassment, violence, or loss of a job.
Worst: Unmasking a specific speaker has the potential to chill the speech of others, who will unlikely be prepared to bear such high costs to speak out on the same topic.
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