MARCH 31, 2013
“Doctors Firing Back At Patients’ Online Critiques”
Liz Kowalczyk, Boston Globe
During Lyn Votour’s struggle against bone cancer and a cascade of complications, her husband slept with her in the intensive care unit for nine weeks. Back home in Central Massachusetts, he changed her bandages, replaced her feeding tube, and shielded her from debt collectors.
And as she lay dying on the hospital bed in their living room, he snuggled beside her, holding her hand.
They had been married 26 years, and his wife’s death at age 46 overpowered Gary Votour with doubt and rage. He was furious at himself for allowing her to have surgery, during which she had a stroke, at friends who didn’t visit, and at his wife’s neurosurgeon.
Believing that airing his concerns would help him heal, Votour requested a meeting with the surgeon at Brigham and Women’s Hospital. When the surgeon turned him down, Votour’s psychiatrist urged him to write her an “open letter’’ online, detailing his concerns about his wife’s medical care.
He got a response, just not the one he had hoped for.
Last month, the surgeon, Dr. Sagun Tuli, sued Votour and the owner of the website for defamation in Middlesex Superior Court, demanding $100,000 for the damage she said the blog post had done to her career. Her lawyer, David Rich of Boston, said Votour’s blog popped up on the first page of Google search results for Tuli, who now works at MetroWest Medical Center in Framingham. Votour has since removed the blog post.
“It’s difficult to believe we have a legal system that allows people to be sued for expressing their grief,’’ Votour said in an interview.
Lyn Votour was diagnosed with a rare bone cancer after an accident in 2005.
Tuli’s lawsuit is part of a gathering wave of claims brought by doctors against former patients, and sometimes their relatives, over negative ratings and reviews they have posted on the Internet, lawyers say.
Not only have personal blogs proliferated, but consumer sites such as Yelp and Angie’s List allow patients to rate and comment on their physicians. These sites are viewed by thousands of people who increasingly rely on them to choose doctors.
David Ardia, codirector of the Center for Media Law and Policy at the University of North Carolina, said the Internet “has realigned the power structure that existed between doctors and patients,’’ giving patients far more influence than they have ever had. “The Web is just chock-full of people commenting on their experiences. Doctors have reacted with a great deal of hostility toward this.’’
A quick perusal of Yelp reveals the kind of comments that are riling doctors. “Fast, Central, Misguided,” said one comment about a Copley Square practice. “Decent for your quick fix med tricks but leaves a bit to be desired in taking the time to truly understand the ailment.”
Wrote another commenter about a Fenway office: “I feel much more like a number than a human being there.”
The Digital Media Project at Harvard University tracks lawsuits filed against patients and others for online comments. Its website includes seven such cases filed over the past five years or so, though it’s not a comprehensive list. In some, patients took down their negative comments. In others, judges dismissed the suit, ruling that patients’ comments were protected under the First Amendment guarantee of free speech.
In one 2011 case, Dr. Aaron Filler, a neurosurgeon, sued a former patient in a Los Angeles court for posting negative comments about him on rating sites such as RateMDs.com, including that he posed an unusually high risk of death to patients. A judge dismissed Filler’s suit, deciding that the patient was exercising free speech on a public issue, and ordered the doctor to pay $50,000 in legal fees.
Doctors feel they are at a disadvantage in responding to negative reviews because medical privacy laws forbid them from discussing a patient’s care in public — a limitation that hotels, restaurants, and other often-rated businesses and professionals don’t face. They also worry that their explanations could be used against them in a malpractice suit — although a new Massachusetts law protects doctors’ apologies.
Dr. Richard Aghababian, president of the Massachusetts Medical Society, believes rating websites present a skewed picture of doctors because patients are more likely to post about negative experiences — even though they may be rare. “For surgeons, their reputation is very important,” he said. “We don’t want to discourage them from taking on really tough cases because they don’t want to ruin their ratings.’’
Companies have cropped up to help doctors fight back. Physicians Reputation Defender specializes in disputing negative online ratings. Medical Justice gathers reviews from a doctor’s patients and posts them on the Internet.
Ultimately, some doctors file lawsuits to try to protect their names, despite what Ardia calls “the reputational cost’’ of going to court, a step that often brings even more attention to the negative review.
While the rating sites are generally immune from libel claims, said Sandra Baron, executive director of the Media Law Resource Center in New York, individuals who post comments are not. In general for a doctor to win such a suit, she said, the statements made by the patient have to be shown to be false and to have hurt the doctor’s reputation.
Most lawsuits filed by doctors against patients or their families arise from a soured relationship, and that certainly seems true for the Votours and Tuli.
In March 2005, Lyn Votour was driving to her job counseling troubled youth when her car skidded on black ice and crashed. An ambulance rushed her to a local hospital, and tests on her neck eventually discovered a rare bone cancer unrelated to the accident.
An oncologist at Brigham referred her to Tuli to have some of her vertebrae removed, a complicated and rare operation. During a second surgery, Votour suffered a stroke that paralyzed the left side of her body.
The Votours and Tuli seemed to work well together at first. Tuli, for example, supported allowing Gary Votour to sleep in the ICU for an extended period, an unusual practice.
But after Lyn Votour was discharged to Spaulding Rehabilitation Hospital, the couple’s relationship with Tuli deteriorated, according to Gary Votour. His wife was eventually discharged to the couple’s home in Barre in July 2006 with a feeding tube and a breathing tube.
More than two years later, depressed and in pain, she asked her husband to remove her feeding tube, he said. Soon she stopped talking, he wrote on the blog, except for “one brief lucid moment when she thanked me for letting her go and made me promise to move on with my life and try to find happiness again.’’ She died days later, in October 2008.
“I was not doing well with grief,’’ he said in an interview. “I wanted to go back and talk to Dr. Tuli about some questions that were bothering me. I really wanted to ask her why don’t doctors follow up after discharge. I wanted to understand why doctors just wash their hands after discharge.’’
Votour contacted a patient advocate at the Brigham, who said she would arrange a meeting. But the advocate called back and said Tuli had declined to meet, Votour said.
Rich, her attorney, said a Brigham lawyer told Tuli not to meet with Votour.
A hospital spokeswoman, Erin McDonough, said in a written statement that a log kept by the patient advocate “documents that Dr. Tuli indicated that she was not comfortable meeting with Mr. Votour. The hospital’s records clearly indicate it was her decision.’’ The hospital lawyer said she never spoke to Tuli about Votour’s request, McDonough said.
Frustrated, Votour put up his blog in March 2010 and e-mailed a link to Tuli and other Brigham staff who had cared for his wife.
In his post, Votour criticized Tuli for not visiting his wife at Spaulding, according to a copy of the blog included in the lawsuit. He wrote that the surgeon called their home once after her discharge but did not offer to help coordinate her care, and that Spaulding doctors and others urged him to file a lawsuit against Tuli. At another point, he said he lost his wife “not to cancer but to indifference and egotism.’’
In the lawsuit, Tuli said these statements are false and defamatory. In written comments, Rich said that patient privacy laws prevent Tuli from discussing the reasons for the stroke, but according to the blog, she told the Votours it was caused by a preexisting tear in the heart.
Rich wrote that Votour completely misunderstood how discharge planning works at large hospitals. Tuli, Rich said, did not have privileges to treat his wife at another hospital and they lived too far away for her to provide follow-up care.
Rich said Tuli was surprised by the blog, because Votour had previously written e-mails complimenting her care of his wife. After Lyn Votour’s stroke, Tuli “spent 12 hours with Votour and was completely responsive and sympathetic,’’ Rich said.
Tuli, who won a $1.6 million jury award against the Brigham and the chief of neurosurgery in 2009 for gender discrimination, left the hospital in 2011.
Rich called the lawsuit a last resort — lawyers for Tuli initially asked Gary Votour to take down his blog in 2010. Votour took down the blog in February. He said his client hopes to “work out some amicable solution.’’ But she wants Votour to sign an agreement not to write about her again — something he has refused to do.
People have expressed concern to Tuli about what they read on Votour’s blog, Rich said, and some have certainly been dissuaded from seeking her out as a surgeon. “If you are thinking of hiring someone or working with someone, the first thing you do is Google her name,’’ he said.
In the end, Ardia said, doctors will not find satisfaction through the courts, but by using the Internet to their advantage — encouraging happy patients to write online reviews and trying to address the concerns of those who are not. “The ultimate solution is engagement and realizing that not every patient is going to be happy.’’
Votour, who still owes $25,000 to credit card companies for expenses related to his wife’s care, has moved to Columbia, S.C., where he earned a master’s degree in hospital administration. He now works as a patient advocacy consultant. He named his company Fierce Advocacy.