Blue Cross / Blue Shield Says Study Pointing Out Failures Of Its Doctors... Violates Its Trademark

from the that's-not-how-tardemark-works dept

Don't mean to sound like a broken record, but the purpose of trademark is consumer protection from confusion. The idea is that someone shouldn't be able to sell you "Bob's Cola," while labeling it "Coca Cola," because that's a form of fraud on consumers. Tragically, over the last few decades, lawyers have been able to reposition trademark law not as a "consumer protection" law, but as "intellectual property." This leads trademark holders to increasingly pretend that trademark law grants them additional rights and abilities and to use trademark law in ways that simply are not granted under the law.

For example, the Massachusetts Blue Cross/Blue Shield apparently thinks that you can't publish a study criticizing its doctors without permission thanks to trademark law. The company's VP of Communications contacted the authors of the study (which pointed out that BCBS doctors didn't always respond well to patients needing psychiatric care), telling them:

“We are VERY concerned about the use of BCBSMA’s name and brand in a published study without BCBSMA authorization. We’d like to talk with you about that.”

You may be concerned, but shouldn't you be a bit more concerned about the results of the study that call into question the practices of your doctors? Because the use of the name is perfectly legal and in no way touches on trademark law. No moron in a hurry is going to have a "likelihood of confusion" here, thinking that this study was somehow a product of BCBSMA. And, of course, in trying to intimidate the study's authors, all BCBSMA has done is... draw a lot more attention to the study and the reported failings of the organization.

Filed Under: doctors, study, trademark
Companies: blue cross blue shield

Medical Justice Caught Posting Happy Reviews Of Doctors; Claims It's Just Helping Patients

from the uh,-yeah dept

Tim Lee has been doing a wonderful job dismantling the highly questionable claims of Medical Justice, the sketchy company that signs up doctors to give their patients forms that claim to hand over the future copyrights on any reviews that are written. Medical Justice insists that it only takes down "fraudulent or fictional" reviews, but if that's the case, then the copyright wouldn't make any sense. The latest is that Lee has turned up evidence that Medical Justice doesn't just try to take down reviews, but it posts a bunch itself as well:

The first to notice the trend was John Swapceinski of RateMDs.com. Between November 2010 and March 2011, six IP addresses registered to Medical Justice collectively submitted 86 ratings to his site. They reviewed a total of 38 doctors in Florida, New Jersey, California, North Carolina, Hawaii, Texas, Illinois, and seven other states. Several of them appear to be known MJ clients. At our suggestion, Yelp reviewed its logs and found that those same six IP addresses had also been responsible for numerous favorable doctor reviews on Yelp.

Oops. Medical Justice defends this practice by claiming it's not making up fake reviews, it's simply helping patients post their reviews, since it's too difficult for them to do it themselves. Basically, Medical Justice gives doctors forms they can give patients to fill out reviews, which are then entered into these review sites by Medical Justice staff. Now, that seems a bit strange, but perhaps it's legit... until you realize that the only reviews that Medical Justice staff seems to post are ones that are entirely and absolutely positive, with ratings of fives across the board:

There are a lot of unanswered questions. For example, every one of the 86 reviews posted to RateMDs.com gave five stars in every category. Did MJ or its clients filter out more critical reviews? It's hard to say without more details.

Also, different review sites have different rating scales. Yelp has a single 5-star scale, RateMDs.com solicits ratings for "staff," "punctuality," "helpfulness," and "knowledge," and other sites have still other scales. Does MJ ask patients to choose ratings for all of these categories? Or does it "help" users out by filling in those fields itself? Unfortunately, MJ wouldn't talk to us about it.

The deeper Lee looks, the worse this looks. Apparently, rather than be upfront about this, Medical Justice uses "obviously one-off, throwaway" email addresses with each account. Furthermore, it refused to let Lee talk to any of the patients who apparently filled out one of these forms. In other words... the whole thing sounds pretty sketchy. It also appears to violate at least Yelp's terms of service, which says that you cannot create an account for anyone else. Amusingly, Tim Lee also found an old blog post on Medical Justice's site, which it has since removed, in which it claimed "thou shall not impersonate others on the internet. Apparently, Medical Justice only feels that way when those impersonating people rate their doctors poorly. Even more amusing, is that the blog post highlights how impersonating others online can result in criminal liability. No wonder Medical Justice removed the post...

Filed Under: doctors, reviews
Companies: medical justice

Doctors Who Ask Patients To Sign Over Copyright On Any Online Reviews Are Only Harming Themselves

from the medical-injustice dept

Over the past few years, we've written about the controversial program from a group called "Medical Justice" to get doctors to force their patients to sign over the copyright on any future reviews they might write on sites like Yelp or RateMyMD. The whole setup is both ethically and legally dubious, and a few weeks back some highly respected law professors, Eric Goldman and Jason Schultz, set up the site DoctoredReviews.com to help counter Medical Justice's efforts.

After I wrote about that, Medical Justice's PR staff was quick to contact me, claiming that their forms only covered "fictional or fraudulent reviews" and saying that the company's CEO would be more than happy to talk with me. I may have to take them up on that, because apparently the company was completely unwilling to talk to Tim Lee when he sought to do an excellent, well-researched and thorough takedown of Medical Justice's ethically dubious practices, after being told he had to sign one of their forms in order to see a dentist. After debating it with the dentist's office manager, Lee instead went and found another dentist. The office manager made the same claim as Medical Justice, that this was only for fraudulent or fictional reviews, but that doesn't pass the common sense test. If the reviews were fraudulent of fictional, the dentist can use defamation laws to respond. Furthermore, if they're being written by non-patients, as the office manager alleged, then the agreements are meaningless, because the non-patients never signed them.

The real fear is the chilling effects created by such documents. Medical Justice may insist that the forms aren't intended for honest negative reviews, but patients don't know that. The forms certainly don't play that up. So anyone who signs the form may be scared off from actually responding -- even though the legality of handing over such a copyright is also legally dubious.

In the end, it does seem ethically questionable for doctors to require patients to sign such forms. As Schultz tells Lee:

"It's completely unethical for doctors to force their patients to sign away their rights in order to get medical care," he said. He pointed out that patients seeking treatment can be particularly vulnerable to coercion. Patients might be in acute pain or facing a life-threatening illness. Such patients are in no position to haggle over the minutia of copyright law.

Furthermore, Lee questions the claims of Medical Justice (and the dentist he visited) that in signing the Medical Justice forms, patients get greater privacy rights than required by HIPAA. Apparently, that may have been true in the past, but there's no clear evidence that it's true today:

And it gets worse. The "mutual privacy agreements" promise not to exploit a loophole in HIPAA that allows doctors to sell patient information for marketing purposes. But Schultz said that loophole was closed several years ago. Which means that recent versions of the Medical Justice agreement (including the one I was asked to sign) are lying to patients when they promise more protections than are offered under federal law. The Medical Justice website still claims that patients are "granted additional privacy protections" under the law, but doesn't elaborate or back up this claim.

Hopefully, more and more doctors will recognize that forcing patients to sign such forms only hurts them. Like Lee, I wouldn't use a doctor who uses Medical Justice, because it immediately suggests that they're more afraid of hiding bad reviews than they are in providing top notch service. Lee also points out that doctors are hardly helpless against negative reviews, and that they have opportunities to respond to them and help those patients, and in fact, that such responses can help build a stronger reputation for doctors. It really is truly unfortunate that so many doctors don't think through the obvious implications of using such forms.

Filed Under: copyright, doctors
Companies: medical justice

Court Says Complaining About Doctor's Bedside Manner Is Not Defamation

from the good-ruling dept

We keep hearing stories about doctors suing patients for bad reviews. However, there's some good news, in that a recent court ruling was pretty clear that complaining about your doctor is not defamation. In this case, it wasn't even just complaining via online reviews, but the son of the patient filed complaints about the doctor's treatment and bedside manner with "the American Academy of Neurology, the American Neurological Association, two physicians in Duluth, the St. Louis County Public Health and Human Services Advisory Committee and St. Luke’s hospital, among others." In other words, the son was not happy with Dr. David McKee and made that widely known.

The court clearly saw someone who was upset and emotional, and saw no defamatory intent:

In his 18-page order dismissing the suit, Sixth Judicial District Judge Eric Hylden wrote that looking at Laurion’s “statements as a whole, the court does not find defamatory meaning, but rather a sometimes emotional discussion of the issues.”

As for the public online reviews that the son filed also? Perfectly reasonable:

“In modern society, there needs to be some give and take, some ability for parties to air their differences,” the judge wrote. “Today, those disagreements may take place on various Internet sources. Because the medium has changed, however, does not make statements of this sort any more or less defamatory.”

It's really nice to see some judges recognize this simple point. I doubt we'll see any slowdown of such lawsuits any time soon, but any case law that comes out reasonably seems like a good thing.

Filed Under: bedside manner, defamation, doctors

It May Soon Be Illegal For Doctors In Florida To Ask About Gun Safety

from the missing-the-point dept

Via Boing Boing, we learn of a bill in Florida -- apparently lobbied for heavily by the NRA -- that would make it illegal for doctors to ask patients about their gun safety habits. This is especially targeted towards pediatricians, who regularly ask that of parents:

As parents know, pediatricians ask a lot of questions. Dr. Louis St. Petery says it's all part of what doctors call "anticipatory guidance" -- teaching parents how to safeguard against accidental injuries. Pediatricians ask about bike helmets, seat belts and other concerns.

"If you have a pool, let's talk about pool safety so we don't have accidental drownings," he says. "And if you have firearms, let's talk about gun safety so that they're stored properly — you know, the gun needs to be locked up, the ammunition stored separate from the gun, etc., so that children don't have access to them."

For decades, the American Academy of Pediatrics has encouraged its members to ask questions about guns and how they're stored, as part of well-child visits.

Seems reasonable, right? Well, not according to the NRA, who claims that this is a "moral judgment" and a "privacy intrusion."

I have to admit that I'm at a total loss to see what the NRA is concerned about here. I thought the NRA was a huge proponent of gun safety. I mean, on the NRA's website it has a section on gun safety where it declares:

Since the NRA's incorporation in 1871, public safety and community service have been among our highest priorities.... At the NRA, we're dedicated to the lawful, effective, responsible and above all safe use of firearms. And today, we do more to ensure Americans are safe around firearms -- whether or not they choose to own them -- than any other public or private group.

So, um, why would they possibly want this ban?

Filed Under: doctors, florida, gun safety, nra

Why Doctors Shouldn't Abuse Copyright Law To Stop Patient Reviews

from the it's-bad-for-business dept

Two years ago, we wrote about a very sketchy operation, called Medical Justice, that was pushing a highly questionable plan to use the DMCA to stop patients from rating their doctors on online ratings sites. The plan works as follows: as part of your visit to the doctor, the doctor makes you sign a "waiver" provided by Medical Justice, which assigns the copyright on any review you might write to the doctor. Then, if you write a bad review, the doctor can claim copyright infringement, and use the DMCA takedown process to remove the bad review.

As we noted at the time, this is clearly not what copyright law was designed for.

We've also pointed out that it's not clear that this process is actually legal, and many reviews might not have any actual copyright anyway -- and in cases where there is copyright, a very strong fair use defense can be made. Still, Medical Justice has continued to convince doctors that this is a good idea, and two well-respected law professors have decided to begin educating doctors and patients about why they should be wary. Professors Eric Goldman and Jason Schultz have launched a new site called Doctored Reviews: Why Medical Justice's Anti-Review Contracts are a Poison Pill, hoping to convince doctors to stay away.

In the announcement, Goldman notes that if the website still fails to stop these kinds of practices, they may need to get more aggressive. Hopefully doctors realize that this is a bad idea. And, seriously, if your doctor made you sign one of these, wouldn't you go find a new doctor? If my doctor is trying to stifle bad reviews, then that makes me a lot more worried than any bad review. As Schultz notes in the press release:

"Doctors who use these gag-order contracts are essentially telling patients 'if you want medical care, you must sign away your right to free speech,' ... "More speech is the answer [to reviews]," he said, "not censorship and copyright abuse."

Filed Under: contracts, copyright, doctors, free speech, reviews
Companies: doctored reviews, medical justice

Doctors Caught Revealing Info About Patients On Facebook

from the not-smart dept

Earlier this year, we noted that the Journal of Medical Ethics was recommending doctors stay off Facebook entirely. I thought that was kind of silly, so long as doctors were aware of what they were doing on social networking sites, what was the problem? Well, apparently, not all doctors are particularly smart or discreet when it comes to using such tools, and a doctor in Australia has been reprimanded for revealing patient info on his Facebook account... which the patient later saw. You would think that even if a doctor was clueless enough to reveal info about patients on Facebook that he or she would at least keep that info private, but apparently, not every doctor has basic common sense.

Filed Under: doctors, privacy, social networks

Doctors Sue Blue Shield Over Rating System

from the free-speech-ain't-free dept

It appears some California doctors are not at all pleased with a new doctor rating system launched by Blue Shield of California and have launched a class action lawsuit against the insurance company. Blue Shield notes that the rating system uses "nationally recognized measures of care," and the data itself comes from doctors groups, health plans and purchasers. Of course, the real question is whether or not a rating system like this can be against the law. After all, it's an opinion. In many ways, this lawsuit reminds me of lawsuits against Google from people who don't like their rankings. Such lawsuits have not gone far. Blue Shield has every right to express an opinion about a doctor, and in this case does so based on a variety of well-accepted measures. I can understand why doctors who don't perform well might not like it -- and I can also see potential problems if the data creates incentives for certain behavior that is less helpful for patients -- but that doesn't make expressing an opinion illegal. Hopefully the courts will recognize that, or we may get a very bad ruling on the books that says that giving an opinion is not allowed if some people don't like that opinion.

Filed Under: doctors, free speech, opinions, ratings
Companies: blue shield of california

The Ethical And Legal Problems Of Having Patients Sign Over The Copyright On Doctor Reviews

from the it's-just-bad-all-around dept

About a year ago, we wrote about the really troubling concept pushed by a group called Medical Justice, which tries to "protect" doctors from negative reviews online by having them demand that patients hand over the copyright on any future reviews they might write. As we noted at the time, this was an attempt to completely abuse copyright law, way beyond its intended purpose -- though we wondered if it would actually work. Here's what we wrote a year ago:

Of course, it does bring up a few interesting points of discussion. First, is that the main purpose of using copyright here is so that the doctors can make use of the DMCA's notice-and-takedown safe harbor provisions, rather than be stymied by the similar (but not quite the same) CDA section 230 safe harbors for things like defamation. One of the key differences between the two is that Section 230 doesn't have a notice-and-takedown provision (though some have been trying to add one). So, really, all this is designed to do is figure out a way to shift the critical rules in question from the CDA to the DMCA. Sneaky!

Second, is that I wonder if this would be seen as actual copyright infringement anyway, or if reviewers could make a credible fair use defense. In some cases, the review itself might not even be covered by copyright (i.e., if there's no creative expression in it -- such as simple "he's awful!" reviews). In other cases where copyright might exist, the four factor fair use test might allow its use. While it could hurt the doctor's ability to make money as a doctor, it wouldn't be harming the market for the copyrighted content. Also, the use would be for purposes of "criticism." So, it's difficult to see how such content posted on a review site would actually violate anyone's copyright, even if the rights really were signed over.

But... (and this is where that sneaky first part comes into play), this might not matter. Even though you can get in trouble for filing a false DMCA notification (and even for failing to take fair use into account), most online services will quickly pull down content when receiving a DMCA takedown to preserve their safe harbor protections. So in almost all cases, the content will get pulled down, even if the content isn't really infringing. And, then it seems quite unlikely that any reviewer/patient will find it worth the trouble of filing a counternotice.

Since then, we hadn't heard too much about this practice, and had kind of hoped it had just gone away. No such luck. The NY Times recently had an article about how people who vent about bad service online might get them sued, and it mentions Medical Justice and their copyright trick. So, even though this has been going on for a bit, now that the NY Times has covered, it's starting to get much more widespread interest. Public Knowledge has done a pretty thorough critique on the legal aspect of this echoing many of the points I made last year:

Asserting copyright ownership over future physician ratings raises a number of basic copyright problems.  First, it is unclear whether a person can even assign copyright ownership in a work that has not yet been created, outside of a work-made-for-hire relationship. Second, it seems that many of the ratings that upset Medical Justice cannot be copyrighted at all.  A doctor using the Medical Justice agreement to censor an unfavorable review is really fighting against the idea in the review, not the expression that embodies it. This is a dichotomy long established in copyright law: copyright protects the expression of ideas, not the ideas themselves.  If the works at issue can't be protected under copyright law, then nobody owns the copyright to them--not the patient, and not any assignee to whom she purportedly transfers the copyright.  The ratings on many of the sites that Medical Justice dislikes (ratemds.com, vitals.com, drscore.com, doctorscorecard.com) include both space for written comments and numerical rating systems, while others (healthgrades.com, revolutionhealth.com) only collect numerical information, with no space for users to write any comments about the doctor. The numerical ratings pretty clearly have no original creativity element in them that would allow any person to claim copyright over them. Even the brief written comments likely include many examples that lack sufficient originality (ex. "Dr. Smith was mean.") to be protected under copyright law.

Even if the rating could be protected under copyright and the doctor somehow obtained legal ownership of the copyright, it seems fair use would still prevent doctors from demanding take-downs.  The ratings are used for criticism, and while they may affect the doctor's business, they do not hurt the market for the rating itself. And, as discussed above, many of these ratings are barely, if at all, creative enough to be protected by copyright.

Using these "Anti-Defamation" agreements to assert purported intellectual property rights not only opens the door to the DMCA notice-and-takedown regime, but removes the case entirely from the auspices of the CDA, where it belongs. Section 230 of the CDA protects sites from liability for user-generated content, except in instances of criminal liability or intellectual property infringement.  Medical Justice is clearly not a fan of the policy judgments embodied in Section 230 (here Medical Justice refers to the well-established statute as "an arcane nuance of cyberlaw").  Nevertheless, Congress has already decided that imposing liability on websites for the behavior of their users would only inhibit the development of online services.  These agreements twist intellectual property law to subvert congressional intent, which is particularly problematic when Congress has already established legal mechanisms to handle defamation claims.

And, it's actually even worse than that. PK also points out that, in theory, if this is allowed, then a Doctor could sue a patient for a bad review, claiming "copyright infringement" and demand statutory damages of between $750 and $150,000 for each bad review. Think about that for a second.

Separately, Jason Schultz points out that this whole scheme appears to violate basic medical ethics rules. He points to a particular rule:

Under no circumstances may physicians place their own financial interests above the welfare of their patients. The primary objective of the medical profession is to render service to humanity; reward or financial gain is a subordinate consideration. For a physician to unnecessarily hospitalize a patient, prescribe a drug, or conduct diagnostic tests for the physician's financial benefit is unethical. If a conflict develops between the physician's financial interest and the physician's responsibilities to the patient, the conflict must be resolved to the patient's benefit.

How does that apply here? As Schultz explains:

Since the main concern of Medical Justice appears to be preventing harm to the physician's reputation (and thus financial interest), forcing patients to assign away their copyrights in exchange for medical care strikes me as close if not over this line. It certainly is not putting patients first. When a patient goes to see a doctor, they are often anxious, in pain, or worried and thus in a very psychologically vulnerable position, or what the law often calls a position of "duress" where they will often sign documents without giving them proper consideration. This hardly seems to me to be a fair time to demand they assign some unknown number of future copyrights to their doctor; instead it feels like a huge power grab by the physician.

When you create draconian copyright laws that include free speech removing notice-and-takedown provisions, don't be surprised when people abuse it for other purposes, well beyond the intent of copyright law.

Filed Under: copyright, defamation, doctors
Companies: medical justice

Should Doctors Google Patients?

from the information-wants-to-be-free dept

We recently had a story about an article in the Journal of Medical Ethics that recommended doctors avoid using social networks entirely, because of potential ethical issues related to patient information. That seems a bit extreme. It seems like there would be ways to use social networks without compromising your ethics. However, a recent article in the LA Times takes this discussion a step further. Beyond discussing social networking usage and "friending" between doctors and patients, it wonders if it's okay for doctors to do internet searches on their patients to find out more info about them (or even see if they're lying about stuff). Of course, this seems like a bit of a flip side to the typical complaint from some doctors who don't like that patients are searching for information online themselves, though usually more for self-diagnosis. The article suggests that it really depends on the doctor, the patient and the situation, but it seems that many doctors are afraid to search for info about their patients.

Filed Under: doctors, patients, search, social networking