Medical Justice or an Unjust Medical Practice?

Dan Whalen is a JD candidate at Osgoode Hall Law School.

Since 2002, at least one company, Medical Justice, has been offering physicians the opportunity to quiet the online voices of dissatisfied patients through a unique manipulation of copyright law. As this service has become more popular among physicians, closer scrutiny has become warranted. Unfortunately for the service’s providers and subscribers, such scrutiny does not bode well.

In the Internet age, patients disgruntled by (perceived) shoddy medical care are able to seek recourse against their physicians by chiding them online. Naturally, the benefit that such comments provide for prospective patients by way of warnings is at least equal to the level of damage that such reviews can do to the denigrated physicians’ practices. Unfortunately for American physicians, the US Communications Decency Act, Title V of the Telecommunications Act of 1996, prohibits websites’ liability for such defamation.

Enter Medical Justice, a North Carolina-based company with an ingenious, if dubious, solution that capitalizes on another development of the digital age, the aptly named U.S. Digital Millennium Copyright Act (DMCA). Under the notice and takedown provisions of the Act, websites must remove material that infringes copyright if they wish to avoid legal repercussions. Yet s. 512 of the DMCA requires that takedown notices be sent by or on behalf of the copyright owner.

For the price of about US$600, Medical Justice provides physicians with a standard-form legal agreement for patients to sign and thereby transfer their intellectual property rights over their as-yet unwritten online comments to the physicians treating them. Thereafter, if a patient posts something that the physician objects to, then said physician can exercise his or her newfound copyright ownership to demand that internet service providers remove the offending comment.

Unsurprisingly, this service has raised some eyebrows. At an immediate level, many are rightly concerned by the service’s unabashed censorship of patients’ speech. “That’s a little too Big Brother for me,” reflected one Canadian hospital patient.

From a legal perspective, many are further skeptical of the merits of the agreement itself. The first barrier would seem to be whether patients’ online evaluative comments even qualify as copyrightable material. This consideration is further complicated by the fact that, at the time of signing the agreement, patients have yet to even write anything. The agreement may thereby be inappropriately pre-emptive and unsupported by law. Even if these barriers are overcome, however, copyright and contract law generally require that written assignments of copyright be granted in exchange for some consideration, such as payment. Some onlookers wonder what the payment is in the case of this agreement. Is it the medical treatment itself? Are physicians required to dole out small tokens such as tongue depressors or toy stethoscopes? Barring even this concern, the agreement may be void for breach of public policy. One interpretation could be that the agreement places physicians’ financial interests ahead of patients’ right to adequate medical care.

It is yet unclear whether these concerns would stand up to judicial scrutiny. However, as services like Medical Justice gain popularity with physicians, popular outrage among the general public may also crest and lead to lawsuits. Until then, patients would be well-advised to watch both what they sign in doctors’ offices and post online afterwards – Big Brother may be watching you.