Insult And Injury: How Doctors Are Losing The War Against Trolls
In the untamed world of online comment sections, no one is more vulnerable to criticism than doctors, who are restricted by confidentiality laws from defending themselves against even the most outlandish of claims. With patients increasingly dependent on internet marketplaces to find care — and increasingly prone to frustration — it’s the caregivers who get hurt.
At first glance, the homepage for Philip Leggett, M.D., appeared unremarkable. Visitors were greeted with stock photos of smiling faces in a banner across the top; Leggett’s credentials as a respected laparoendoscopic surgeon were in bold type.
But closer examination revealed something curious: the patient reviews. “My husband went into surgery to have his appendix removed. … he died two days later,” read one. Another: “Dr. Leggett and his staff strongly believe that the best physician-patient relationships are based on mutual respect and trust. That is, until we perform your surgery, after which we just dump you in the streets like a black baby in a dumpster.”
One patient of Leggett’s found this to be a curious way to attract business and asked about it during an appointment. “You’ve got a problem with your site,” the man said. Leggett saw what was going on and quickly contacted authorities in Harris County, Texas.
“It was a case of online impersonation, which is illegal in Texas,” says Lt. Gary Spurger, of Harris County’s High Tech Crimes Unit. “It looked almost identical to his real site, but it was not complimentary of the doctor. At all.”
Lt. Spurger traced the source IP, which led to the home of web designer Vector Thorn. Thorn, who had legally changed his name to sound like something out of a James Bond movie for reasons unknown, had obtained the URL within a week of having a procedure performed by Leggett in September 2012. He didn’t populate the site with fake reviews until June 2013.
Thorn was charged with a third-degree felony and released on bond. When asked by Spurger why he waited almost a year to do something, Thorn had no good answer. But Spurger knew the motive: “He wanted more narcotics.”
There is certainly nothing new or novel about people being mean to one another on the internet. But health care occupies a unique space amid critiques of restaurant appetizers and roofers: Because the Health Insurance Portability and Accountability Act (HIPAA) of 1996 prevents doctors from discussing patients, disgruntled and anonymous individuals can pick fights over their quality of medical care with little chance of being successfully hit back, leaving physicians almost powerless to defend themselves. In some instances, aggravated patients use that advantage to mount calculated attacks with the intention of inflicting irreparable damage to careers and reputations. In the life-and-death world of health care, a disgruntled few could impact the medical decisions of thousands already struggling to make sense of new marketplace mandates and regulations.
“I would say the internet has not yet matured to the point where there’s a way of easily understanding the difference between an allegation that has some merit and an allegation that’s simply someone venting who has an axe to grind,” says Gary Nissenbaum, an attorney specializing in commercial litigation. “It’s very hard to tell the two apart.”
A recent Pew Research Center study indicates that 72% of all U.S. internet users looked online for health information in 2012; 30% of them have looked specifically at provider reviews, where anyone can write anything under a near guarantee of anonymity. More than 700,000 physicians are listed on Vitals.com, the largest of the patient review sites, which attracts more than 13 million visitors a month. ZocDoc.com, RateMDs.com, and Yelp.com maintain sizable directories of provider information. (RateMDs.com has logged over 2 million reviews since debuting in 2004.)
Liz Brott, a regional vice president at ProAssurance, a professional liability insurance company, says she’s seen a rise in the number of libel and defamation cases rattling doctors of all kinds. “It’s something that’s come up in the last year or two that we’ve never seen before,” she says. “We’ve had to figure out a strategy to address these complaints.”
It could be argued these sites have proliferated by being an alternative to costly and frustrating malpractice suits. Most cases aren’t even pursued unless a patient is demonstrably injured or died as a result of care; it can cost thousands just to have a hospital make copies of pertinent medical documents. The price of posting a negative review over frustrations with attitude, billing, or a diagnosis? Zero.
RateMDs.com takes a particularly flip approach to the law — and public — being heavily on its side. Its FAQ page cheerfully instructs health care providers how to issue subpoenas and cautions that review sites are not responsible for user comments. “It is not possible for us to verify which raters had which doctors, so always take the ratings with a grain of salt,” reads one disclaimer. “Remember, we have no way of knowing who is doing the rating — the doctor, other doctors, patients, dogs, cats, etc.”
It’s a fair warning. In the case of Dr. Blue, who requested her name be changed for this story, her roles as a medical director and operating room assistant meant she had no patients of her own. Consequently, there should be no reason to ever see her name appear on a review site. But she became curious after overhearing physicians discussing the sites in a hospital lounge one day. She went home and plugged her name into Vitals.
“Doctor Blue is a terrible doctor,” one anonymous poster wrote. “She is mentally unstable and has poor skills. Stay away!” The doctor was aghast and confused: She hadn’t directly seen a patient in three years. Her employer, which outsources Dr. Blue to surgeons, feared she might become difficult to market. Rather than calling or emailing Vitals, she visited its offices in Lyndhurst, N.J. — she was within driving distance. Upon arriving, she was told that locating an IP for the poster would be problematic.
It was not until Dr. Blue threatened litigation that she discovered the source of the post was a computer at New York University Langone Medical Center, a massive facility with thousands of possible culprits. She attempted to subpoena the hospital but was eventually dismissed on the grounds that the statute of limitations was up — she’d taken more than the allotted year to decide to pursue legal action and then try to squeeze both entities for information. In the August 2012 ruling, the judge who heard her argument found that the post constituted opinion: Vitals, she noted, has a disclaimer noting that the reviews should not be considered statements of fact.
Dr. Blue suspects a colleague from medical school was the perpetrator and eventually named her in the suit — she had not seen the woman in question for seven years, and the woman never denied she was behind the posting. Though Vitals allowed her to “hide” the message, anyone googling Dr. Blue is likely to stumble across mention of her case.
As a result — and with no positive reviews to offset the negative press — Dr. Blue wonders who among her potential surgical employers may be passing her by. “I will never know if that happened,” she says. “People I met who I thought I would be in touch with and wasn’t — it’s a huge degree of paranoia.”
Mitch Rothschild, CEO and co-founder of Vitals.com, acknowledges the limitations of his site’s filters that make a post like the one targeting Dr. Blue possible. With upwards of 100,000 reviews per month, manual screening is difficult. “We don’t view it as a social situation, we view it as commerce,” Rothschild says. “People want to see what other people thought about something they want to buy.”
Reviewers are supposed to attest they saw the provider in question, but without a paywall to enforce identities, sites have to fall back on the honor system. To combat what he calls “outliers,” Rothschild says the site can suppress a review like Dr. Blue’s at the physician’s request. Seventy-five percent of the site’s comments, he says, are positive, but there is no “throttle” to check to see if a reviewer’s IP matches a doctor’s general location. In the case of Dr. Blue’s “patient,” nothing was in place to prevent a physician looking to embarrass a peer.
John Swapceinski, the co-founder of RateMDs.com, controls a site smaller than Vitals — it runs approximately 220,000 ratings a year — but shares a similarly open-ended user interface. “Any doctor going into practice knows about HIPAA ahead of time,” he says. “It’s a risk they take upon themselves.”
Swapceinski acknowledges his site gets most of its traffic on weekdays, when doctors are in practice and responses are more likely to be made in the heat of the moment. The site does have algorithms to prevent spamming, but Swapceinski says they’re mainly intended to dissuade the practice of “astroturfing,” or having physician offices overload the site with positive reviews to bolster a doctor’s profile. Aside from threats of physical violence or irrelevant complaints — and profanity — anything goes.
While not exclusively a medical review hub, AngiesList.com might be the most progressive in authenticating reviewers. Users must disclose their real names to the site. If they want AngiesList.com to help mediate a complaint, they have to sign a HIPAA waiver that gives the physician the right to disclose their medical information. But site founder Angie Hicks was unable to state how many times the site has arbitrated a physician-patient dispute; “outed” and identified patients may simply be uncomfortable sharing their medical history with a third party.
“I’m surprised review sites haven’t been more aggressive to create authentication,” says Eric Goldman, a professor at Santa Clara University’s School of Law and someone who has kept a running log of doctor-patient libel suits. “At the same time, I oppose mandatory authentication. You want to speak without being attributed, especially when it comes to health care decisions. The stories cited are bad, but are they any worse than getting sub-quality medical care because of crackpots?”
Doctors aren’t the only professionals rated — and vilified — online. But because their interactions with “customers” can have a radical impact on quality of life, emotions run high. (Other popular targets aren’t nearly as controversial. Ratemyprofessors.com, which caters to a niche university market, allows teachers to remove reckless comments or respond; lawyers can break attorney–client privilege if they choose to litigate an accusation they feel is libelous.) The smears can range from the over-the-top, like Vector Thorn’s, to the more grounded, and thus highly plausible, accusations of reckless behavior or decision making.
A search for Aaron Filler, M.D., a neurosurgeon based in Santa Monica, Calif., will reveal he’s pioneered several new imaging techniques to visualize the spine and nerves and earned a Ph.D. from Harvard University. Up until recently, results would also indicate Dr. Filler has allegedly injected his patients with Wydase, a once trusted enzyme that can contain prion, an infectious agent that carries mad cow disease; in almost all cases, the disease’s human variant — Creutzfeldt-Jakob disease — causes irreversible nervous system damage and a slow, painful death.
The accusation was made by Susan Walker, a biologist and former patient of Filler’s. Beginning in late 2010, Walker engaged in a campaign of harassment, charging her doctor with everything from intentional use of a deadly toxin to severing the nerves of other patients. Once, Filler says, Walker was able to game Google’s search engine for images of the doctor to lead to a picture of a pooping rat.
She rallied for support. “I would like those of you who have had similar experiences to post your stories,” Walker wrote on one message forum about critiquing one of Filler’s books. “Whenever Dr. Filler is googled, this book comes up. It is a good way to inform others, and to get the word to Filler that this is not acceptable.”
And in another post: “If Dr. Filler reads this, I would hope it would cause him to reflect on his practice, and change his incredibly arrogant attitude before he kills someone (assuming he hasn’t already).”
Filler, however, denies he has ever caused the death of any surgical patient or performed any action that would warrant him being compared to a defecating rodent. Yet he was fielding teary phone calls from frantic patients wondering if they were going to die as a result of his practices; he was also mentioned on the front page of the Boston Globe in a March 2013 story that cited Walker’s complaints and the physician’s perceived attempts to quiet her via litigation. The paper, he says, never bothered asking him to comment.
When Filler read the feature, he inferred he was being characterized as someone capable of committing murder. And because of HIPAA, he says, “I’m not supposed to be able to fight back.” Filler calls HIPAA a “Draconian” document that could never have anticipated the online complications of patient complaints. Labeling HIPAA’s stance on gagging physicians “unconstitutional,” Filler argues reform is needed and that “a physician should be able to defend himself.” (In contrast, HIPAA is typically only revised to strengthen patient confidentiality.)
Frustrated with Walker’s overblown response to what he says was over a billing issue — Walker’s attorneys did not respond to requests for comment — Filler sued in 2011 for defamation and interference with prospective economic advantage. In a novel gambit, he argued his medical license could conceivably be considered damaged property.
But in the medical field, a doctor suing a patient is more than just a public relations nightmare. It’s an expensive, time-consuming nuclear option that may be worse than doing nothing at all. The First Amendment protects anonymous free speech and the Communications Decency Act of 1996 empowers sites to act as third-party broadcasters without any liability.
“The laws are stacked against the doctor,” Nissenbaum says. “You’re arguing against something designed to protect free speech. That trumps any case of defamation.”
But a frustrated Filler felt his case was strong enough to pursue, and fought for the right to defend himself. “It’s like Google has a humiliation algorithm,” he says.
Google has no such thing, but it does help facilitate what Techdirt.com founder Mike Masnick coined “The Streisand Effect.” It refers to the consequence of inviting even more negative attention by trying to remove negative attention. Masnick’s inspiration was Barbra Streisand objecting to a photo of her house in California being made part of a series documenting coastal erosion. Her complaints made the image far more pervasive online than it would have been had she simply ignored it.
David McKee, M.D., a Duluth, Minn., neurologist, was unaware of this phenomenon at the time he decided to sue Dennis Laurion. Laurion’s father, Kenneth, had suffered a stroke in April 2010; McKee was called in to assess Kenneth’s condition.
Both McKee and Dennis Laurion agree on substance, if not necessarily intent: The doctor entered the room and expressed that he was initially puzzled the elder Laurion had been moved from intensive care. Usually, McKee said, there are only two ways out of the ICU, and he offered this was the better option. McKee intended for the comment to be lighthearted; the Laurions found it crass.
McKee asked if Kenneth felt like getting out of bed so he could make an assessment on mobility. He did, though his gown was partially undone in the back. According to the Laurions, McKee was oblivious to Kenneth’s modesty. “His son was right there,” McKee counters. “If he was concerned about the gown, he didn’t get out of his chair to tie it.”
The family exited the room while McKee conducted a brief examination. Laurion says he returned to find his father partially conscious. His head, Laurion asserts, was “pushed against the railing” of the hospital bed, appearing to be a victim of postural hypotension that resulted in a brief fainting spell.
Unaware of any resentment, McKee went to the nurse’s station to dictate notes; an irritated Dennis Laurion consulted with his family to see if his impression of the arrogant doctor was real or imagined. At no point did he approach McKee to clear the air. Instead, he fired off a dozen or more letters to a variety of medical institutions, including the hospital’s ombudsman, the Minnesota Board of Medical Practice, Medicare, and the American Medical Association.
“I just wanted someone with ‘M.D.’ after their name to say, ‘This doesn’t reflect well on you.’” Laurion says. “I wanted someone to say he should tone it down and be more personable.” The dozen letters, he says, were to account for any overlapping bureaucracy — though he admits even his own lawyer questioned the avalanche of paperwork.
For good measure, he also posted reviews on rating sites including Vitals.com and Insiderpages.com. In addition to critiquing his bedside manner, Laurion quoted a nurse he ran into who once knew McKee. The doctor, she allegedly said, was “a real tool.”
McKee sued Laurion for defamation. A local Duluth newspaper picked up on the story, favoring Laurion’s interpretation of events. McKee claims the writer called him shortly before close of business Friday to solicit a quote; the story ran the following day. “The article was written like I was being reviewed for misconduct,” McKee says. In fact, no action had been taken against him by any of the organizations Laurion had written to.
Two events further demoralized McKee. In April 2011, the judge granted Laurion’s motion for summary judgment, ruling his comments were protected free speech. Worse, a user on Reddit.com posted the newspaper story. Almost overnight, dozens of “reviews” popped up on RateMDs.com and other sites with outlandish commentary on McKee, who was referred to as “the dickface doctor of Duluth.” Their software was apparently unable to determine that a surge of opinion over a matter of hours was highly unusual activity for a physician who normally received perhaps three comments in a year.
“I got a cold call from an online reputation site,” he recalls. “They said, ‘Boy, you’re all over the internet. You want some help?’” One of the physician’s three daughters was handed a printout of an online post in school and ridiculed. She came home crying.
“The internet creates a scenario where people with most emotional energy behind their opinions will become the most visible,” he says. “But the 7,000 patients I’ve seen since practicing in Duluth that have little or no feelings are invisible.”
Convinced Laurion was behind the multitude of postings (though they coincided with the Reddit discussion, a large number allegedly came from Duluth, where Laurion resided), McKee renewed his litigation and his lawyer hired a private investigator to find the nurse Laurion claimed to have run into. She was never located.
“When he sued me, he opened Pandora’s box,” says Laurion, who denies submitting any posts beyond the initial two. “Whether all of it was proportionate, I don’t know. My intent all along was simply to have someone he respected say to him, ‘When a patient complains, it behooves us to conduct ourselves more circumspectly.’ That was my goal.”
McKee found no easy way to exit the situation. “You get drawn in,” he says, suggesting his lawyer nudged him into further action. “It’s throwing good money after bad. … I wanted out almost as soon as I got in, and it was always, ‘Well, just one more step.’” McKee appealed, and the summary judgment was overturned. The case, and the measurable impact of being labeled a “real tool,” was now headed for the Minnesota Supreme Court.
Physicians who struggle with online attacks typically have one question: What’s motivating patients to go to such lengths?
Leana Wen, M.D., author of When Doctors Don’t Listen and director of patient-centered care research at George Washington University, says instances of excessive browbeating online could be avoided if physicians would take time to have a dialogue with their patients.
“When doctors don’t pay attention, those review sites become the third party,” Dr. Wen says. “There’s a lack of focus in the medical educational system in communication. It’s common for a patient to feel disenfranchised, to not feel as though they know what’s going on with their own body.” According to Wen, around 80% of medical diagnoses come from simply talking to the patient. “It’s a partnership,” she says. “In many cases, the doctor has no idea the patient is this unhappy.”
Indiana plastic surgeon Barry Eppley was well aware he had a disgruntled patient. He performed a face-lift for Massachusetts resident Lucille Iacovelli in 2001 after Iacovelli, 51, had complained a previous procedure had left her face “saggy.”
Months later, she was in near-daily correspondence with Eppley, complaining of breathing and swallowing problems and insisting the surgery had somehow affected her neck muscles. She started blogging about her opinion of the surgeon and even appeared in a 2006 HBO documentary, Plastic Disasters, where she alleged she couldn’t breathe with her head tilted back.
Diagnostic exams were inconclusive or stymied when Iacovelli insisted on having them done a certain way or in a certain order. She was referred to a therapist who suggested she had body dysmorphic disorder, a label she rejected. In the documentary, Iacovelli says she thought suicide might be the only way to be heard. “Hopefully, they’ll listen after I’m dead,” she told filmmakers.
Eppley finally sued in 2009, claiming these online posts were impacting his business. He even trademarked his name in order to claim ownership over Iacovelli’s mentions of him. Low on funds, Iacovelli enlisted a friend, Rich Bergeron, to assist in preparing legal filings. Against her wishes, he also prepared sites like Dreppleysucks.com and other incendiary URLs hosted in a variety of states that satirized Eppley, the presiding judge, and Eppley’s attorney. (Through his legal counsel, Eppley declined to comment for this story.)
“Lucille asked me to help her with the case, but she really was floored by the way I attacked Eppley, his lawyers, and the judge,” Bergeron says. “At times she seemed to enjoy my crusade, though. I remember her commenting that [the judge] looked better as a kangaroo than she did as a woman. She also got a real kick out of Eppley’s attorney wearing a dunce cap.”
Eppley’s injunction saw most of Bergeron’s work taken down. He maintains “outrageous methods” were needed to draw attention to what both he and Iacovelli perceived as a serious attack on the First Amendment. “It wasn’t personal. But he’s out there selling himself, and other people are getting procedures done. She felt like she needed to be an advocate for others.”
Owing to her ailing health and the stress of her afflictions, Bergeron says, Iacovelli committed suicide in 2010. “Just getting groceries to her car was a struggle,” Bergeron says. Though she insisted a comprehensive autopsy be performed on her head and neck to prove her complaints were real and not imagined, nothing was done beyond the standard evaluation. Whether Iacovelli was warranted in her crusade will remain a mystery.
“In the end, all she really wanted was an apology,” Bergeron says. “It sounds so simple and meaningless, but it means so much more than anyone realizes.”
Cases like Eppley’s and Leggett’s are so incendiary that they can find some measure of satisfaction through the court system. But most physicians who struggle with their online reputations find that once a patient is determined to tear them down, the consequences can be permanent.
Aaron Filler, falsely accused of dangerous prion injections, reached a settlement with Susan Walker, only to find her in breach when she didn’t take all of her defamatory posts down. Though court records indicate he’s been directed to pay her legal costs totaling in excess of $50,000, he claims that’s in error. He’s now suing State Farm over a dispute involving her insurance coverage — which, in an ironic twist, may benefit his attacker. Further litigation, he says, may be forthcoming, and he continues to argue for revision of HIPAA.
But law professor Goldman, who says he feels physicians are “thin-skinned” when it comes to patient complaints, rejects the idea of revisiting the privacy laws. “The problem is not with HIPAA,” he says. “It’s a marketplace issue. Consumer review sites have an obligation to make sure their content is credible.”
Whatever sites decide to do, Goldman is confident that litigation is never the answer. “I imagine many lawyers saying that’s not good idea,” he says. “Good lawyers, anyway. McKee made a bad call. There are no winners in defamation lawsuits, and you should advise clients of that.”
Nearly $70,000 in legal fees later, McKee would agree. He argued his case in front of the Minnesota Supreme Court, which ultimately concluded Laurion’s comments were opinions. And because the court could not rule on the meaning of “tool,” it became impossible to determine whether that was libelous.
“Referring to someone as ‘a real tool’ falls into the category of pure opinion because the term ‘real tool’ cannot be reasonably interpreted as stating a fact and it cannot be proven true or false,” read the ruling, which was excruciating in its examination of a schoolyard insult and found in favor of Laurion.
McKee was rated for several years as a top provider in Duluth Superior Magazine, a well-regarded lifestyle publication that recently folded. But his online reputation will outlive that. “From now until the end of time, I’ll be the jerk neurologist who was rude to a World War II veteran,” the physician says. “I’m stuck with it forever.”