‘Freedom of Speech’ has consequences

Go Lean Commentary

Freedom of Speech is not so absolute!

There are consequences to speech – think: defamation, libel and slander – and so there is the need for some curtailment. One cannot just say anything they want about a person or product and not expect some consequences. There is the classic “Fire in a Crowded Theater” scenario.

The intent is the key.

If one says “fire”, knowing full well that there is no fire, he-she may only want to rile people up and make them stampede; then there may be legal consequences. One can be charged with inciting a riot, willful disregard to safety, depraved indifference or manslaughter.

This is serious … in the physical world.

How about the virtual world?

Same rules … and consequences apply. Now we have medical doctors and clinicians on guard about negative comments-reviews-ratings from patients and customers. See the VIDEO & news story of this threat here:

VIDEO – Surgeon: Online posts were part of patient’s ‘obsession over 10 years’ – https://www.usatoday.com/videos/news/health/2018/07/16/surgeon-online-posts-were-part-patients-obsession-over-10-years/788794002/


Title: Doctors, hospitals sue patients who post negative comments, reviews on social media

By: Jayne O’Donnell and Ken Alltucker

CLEVELAND – Retired Air Force Colonel David Antoon agreed to pay $100 to settle what were felony charges for emailing his former Cleveland Clinic surgeon articles the doctor found threatening and posting a list on Yelp of all the surgeries the urologist had scheduled at the same time as the one that left Antoon incontinent and impotent a decade ago.

He faced up to a year in prison.

Antoon’s 10-year crusade against the Cleveland Clinic and his urologist is unusual for its length and intensity, as is the extent to which Cleveland Clinic urologist Jihad Kaouk was able to convince police and prosecutors to advocate on his behalf.

Antoon’s plea deal last week came as others in the medical community aggressively combat negative social media posts, casting a pall over one of the few ways prospective patients can get unvarnished opinions of doctors.

Among recent cases:

  • Cleveland physician Bahman Guyuron sued a former patient for defamation for posting negative reviews on Yelp and other sites about her nose job. Guyuron’s attorney Steve Friedman says that although the First Amendment protects patients’ rights to post their opinions, “our position is she did far beyond that (and) deliberately made false factual statements.”  A settlement mediation is slated for early August, and a trial is set for late August if no agreement is reached.
  • Jazz singer Sherry Petta used her own website and doctor-rating sites to criticize a Scottsdale, Arizona, medical practice over her nasal tip surgery, laser treatment and other procedures. Her doctors, Albert Carlotti and Michelle Cabret-Carlotti, successfully sued for defamation. They won a $12 million jury award that was vacated on appeal. Petta claimed the court judgment forced her to sell a house and file bankruptcy. The parties would not discuss the case and jointly asked for it to be dismissed in 2016 but declined to explain why.
  • A Michigan hospital sued an elderly patient’s two daughters and a granddaughter over a Facebook post and for picketing in front of the hospital they said mistreated the late Eleanor Pound. The operator of Kalkaska Memorial Health Center sued Aliza Morse, Carol Pound and Diane Pound for defamation, tortious interference and invasion of privacy.

Petta’s attorney, Ryan Lorenz, says consumers need to know there can be consequences if they post factually incorrect information. Lorenz, who has represented both consumers and businesses on cases involving online comments, says consumers are allowed to offer opinions that do not address factual points.

“Make sure what you are saying is true – it has to be truthful,” he says.

“It would be great if the regulators of hospitals and doctors were more diligent about responding to harm to patients, but they’re not, so people have turned to other people,” says Lisa McGiffert, former head of Consumer Reports’ Safe Patient Project. “This is what happens when your system of oversight is failing patients.”

As doctors and hospitals throw their considerable resources behind legal fights, some patients face huge legal bills for posting critiques and other consumers face their own challenges trying to get a straight story.

Experts say doctors take on extra risk when they resort to suing a patient.

Doctors typically can’t successfully sue third-party websites such as Yelp that allow consumer comments, but they can sue patients over reviews.

Even so, “you can win (a case) and still not win,” says Eric Goldman, a professor at Santa Clara University’s law school.

Goldman, who has tracked about two dozen cases of doctors suing patients over online reviews, says physicians rarely win the cases and sometimes must pay the patients’ legal fees.

Physician-patient confidentiality rules complicate options for doctors, Goldman says, but they can respond to factually incorrect reviews if the patient agrees to waive confidentiality and publicly discuss the case.

The comments challenged legally are typically those that were left online. Many medical review sites will remove posts they deem offensive or threatening to doctors, as many of Antoon’s or other Kaouk patients’ were. Yelp removes reviews only if they violate the consumer website’s terms of service.

Patients should first bring up complaints directly to the doctor or other medical provider, says Edward Hopkins, an attorney who represented Carlotti, Cabret-Carlotti and their medical practice for part of the case. Other options could include reporting a doctor to state oversight agencies, consulting with an attorney or filing complaints with a state attorneys’ general office.

Advocacy or obsession?

By the time he was arrested last December, Antoon had tried most every option with very little success.

Along the way, Antoon became a patient advocate – volunteering with Consumer Reports’ Safe Patient Project and HealthWatch USA – and advising others who say they were harmed by Kaouk and the Cleveland Clinic.

Cleveland Clinic, one of the top-rated hospitals in the country, has an aggressive legal department. Kaouk and the clinic prevailed in malpractice and fraud cases filed by Antoon and other patients who claimed they were harmed.

Matthew Donnelly, Cleveland Clinic’s deputy chief legal officer, attended Antoon’s criminal hearing in November.

To Kaouk, a decade of negative reviews on social media led to what he considered an escalation when Antoon sent him several emails, including one with a link to an article about a Chinese crackdown on research fraud that could include the death penalty if people were injured or killed.

The day before Antoon posted on Yelp in November, Kaouk was granted a civil stalking protective order against Antoon, which barred him from contacting the doctor.

“What would be next – showing up at my door?” Kaouk said in court. “That’s what we feared.”

In his posts and emails, Antoon documented alleged issues, including Kaouk and the urology department’s lack of credentials to use the robotic device in his surgery. He sent records to the Centers for Medicare and Medicaid Services (CMS), claiming they showed Kaouk was not present in the operating room during his surgery despite his insistence that only Kaouk could perform the surgery.

The Ohio Medical Board closed its investigation into Kaouk after five years without reprimanding him in any way. Antoon’s complaints to CMS temporarily put the hospital’s $1 billion annual Medicare reimbursement at risk.

Antoon’s claims were rejected, and Kaouk was not held liable for the surgery that left Antoon impotent and incontinent.

Along with more than $40,000 defending himself against the criminal charges, Antoon spent almost two days in jail. He had to post $50,000 bond in Shaker Heights and again in Cleveland’s Cuyahoga County after the case was transferred there.

It’s common “for someone in a position of wealth, power and money to go after someone like David to silence critics,” says Antoon’s attorney, Don Malarcik. “That happens often and it happened here.”

Hospitals, including the Cleveland Clinic, combat negative comments with their own rating systems, which let them “control their message,” McGiffert says.

Some comments posted by Antoon and Dan Galliano, another patient who claimed he was injured, disappeared from the websites RateMDs and Vitals, as shown in screenshots Antoon took right after they were posted.

Cleveland Clinic spokeswoman Eileen Sheil says it posts all the government-required satisfaction survey responses patients fill out about doctors on its ratings site, once at least 30 are received. Comments aren’t edited.

Sheil says Cleveland Clinic will request comments to be removed from other sites when they violate the sites’ terms of service.

RateMDs did not respond to requests for comment. Vitals spokeswoman Rosie Mattio says the site has a care team that will investigate reviews it is contacted about.

“While we will not pull down a necessarily negative review, we will remove the review if we find that it violates our terms and includes material that is threatening, racist or vulgar,” Mattio says.

Navigating Yelp

On Yelp, business owners can flag a review to be removed for violation of Yelp’s terms of services. Yelp reviews flagged comments and removes those that include hate speech or a conflict of interest or that are not based on a commenter’s firsthand experience.

The website doesn’t intervene over factual disputes, Yelp spokeswoman Hannah Cheesman says. Instead, it classifies consumer reviews as “recommended” or “not currently recommended” based on an automated software review.

If Yelp’s software detects multiple reviews from the same IP address or biased reviews from a competitor or disgruntled employee, it puts the comment in the not-recommended category. Consumers can still view such reviews by clicking on another page, but those comments are not factors in Yelp’s five-star rating system.

McGiffert has long advocated for a federal database where people could report medical errors and infections. Unless that happens, online review sites – including hospitals’ own and ones that will remove some reviews doctors object to – are among the only places patients can find physician reviews.

Doctors such as Kaouk suggest they are the ones who are disadvantaged.

“It is something that if anybody would look just by Googling my name online, you would see what he has written about me,”  Kaouk says of Antoon.

O’Donnell reported from Cleveland and McLean, Virginia. Alltucker reported from McLean.
Source: USA Today Daily Newspaper – Published July 18, 2018; Retrieved September 5, 2018

Can they – medical doctors and clinicians who shun negative comments-reviews-ratings – or should they regulate other people’s opinions? This is a BIG deal to contend with, as this issue reflects the current state of Internet Communications Technologies (ICT).

This is the world of New Media; the internet has supplanted all Old Media options, we need to settle this debate sooner, rather than later. While the debate in the foregoing article may be an American drama, the issue is with the World Wide Web.

This is a familiar theme for the movement behind the book Go Lean…Caribbean – available to download for free. Previously this site has presented blog-commentaries that highlight the need for better Internet Stewardship in the Caribbean Cloud. Those submissions presented some comprehensive ideas. See here:

http://www.goleancaribbean.com/blog/?p=14811 “Loose Lips Sink Ships” – Leaders Undermine College Enrollment

Freedom of Speech exercised wrongly could result in less economic activity. This is what is happening in the US, under President Trump, fewer international students are considering, applying and attending American universities. This is a lesson learn for the dangers of Hate Speech.

http://www.goleancaribbean.com/blog/?p=11224 “Loose Lips Sink Ships” – Leaders Undermine Tourism

Freedom of Speech exercised wrongly could result in less tourism. If leaders make Hate Speech, then fewer people may want to come visit. This is what is happening in the US, under President Trump.

http://www.goleancaribbean.com/blog/?p=10052 Fake News? Welcome to America

With tabloid journalism and Fake News, the American eco-system features Freedom of False Speech; so mis-information is easily spread. This distortion of truth is not the model for us in the Caribbean.

http://www.goleancaribbean.com/blog/?p=5435 China Internet Policing – Model for Caribbean

Someone needs to be watching the e-Store. China’s approach is that they actually “police” the internet within their borders. A bridge too far? Perhaps, but there is no debate that there is some need to regulate speech on the internet. It cannot just be the Wild Wild West.

http://www.goleancaribbean.com/blog/?p=5353 POTUS and the Internet
The President of the United States started using the internet as a freeform communications to his citizens – this turned ugly fast; hate speech proceeded immediately towards Obama.
http://www.goleancaribbean.com/blog/?p=4793 Truth in Commerce – Learning from Yelp

The e-Commerce site for rating retailers, Yelp, has often been hijacked by Bad Actors to undermine businesses for their own nefarious motives or just out of depraved indifference.

http://www.goleancaribbean.com/blog/?p=4673 Review “Merchants of Doubt” Documentary

There is a professional industry whose purpose is to conduct disinformation campaigns, plant seeds of doubt and even declare outright lies as dissenting views. These are Bad Actors.

The Go Lean book serves as a roadmap for the introduction and implementation of the technocratic Caribbean Union Trade Federation (CU), for the elevation of Caribbean society – for all member-states. Internet & Communications Technology is expected to be a major factor in this roadmap – ‘the great equalizer’. This CU/Go Lean roadmap has these 3 prime directives:

  • Optimization of the economic engines in order to grow the regional economy to $800 Billion and create 2.2 million new jobs. ICT strategies, tactics and implementations are paramount in delivering economic empowerments.
  • Establishment of a security apparatus to ensure public safety, ensure justice institutions and protect the resultant economic engines. ICT strategies, tactics and implementations are important in optimizing security provisions, imagine intelligence gathering and analyzing systems.
  • Improve Caribbean governance to support these engines, including a separation-of-powers between the member-states and CU federal agencies. E-Government will be the hallmark of the CU technocracy, so ICT strategies, tactics and implementations are paramount in delivering better governance.

The requisite investments to deploy the latest-greatest strategies, tactics and implementations in the art and science of ICT are too big for any one Caribbean member-state alone. So the Go Lean book stresses that reforming and transforming the Caribbean societal engines must be a regional pursuit. This was an early motivation for the roadmap, as pronounced in the opening Declaration of Interdependence (Pages 12 – 14):

xi. Whereas all men are entitled to the benefits of good governance in a free society, “new guards” must be enacted to dissuade the emergence of incompetence, corruption, nepotism and cronyism at the peril of the people’s best interest. The Federation must guarantee the executions of a social contract between government and the governed.

xvi. Whereas security of our homeland is inextricably linked to prosperity of the homeland, the economic and security interest of the region needs to be aligned under the same governance. Since economic crimes … can imperil the functioning of the wheels of commerce for all the citizenry, the accedence of this Federation must equip the security apparatus with the tools and techniques for predictive and proactive interdictions.

xxiv. Whereas a free market economy can be induced and spurred for continuous progress, the Federation must install the controls to better manage aspects of the economy: jobs, inflation, savings rate, investments and other economic principles. Thereby attracting direct foreign investment because of the stability and vibrancy of our economy.

xxvii. Whereas the region has endured a spectator status during the Industrial Revolution, we cannot stand on the sidelines of this new economy, the Information Revolution. Rather, the Federation must embrace all the tenets of Internet Communications Technology (ICT) to serve as an equalizing element in competition with the rest of the world. The Federation must bridge the digital divide and promote the community ethos that research-development is valuable and must be promoted and incentivized for adoption.

The Go Lean book provides 370-pages of turn-by-turn instructions on “how” to adopt new community ethos, plus the strategies, tactics, implementations and advocacies to execute so as to reboot, reform and transform the societal engines of Caribbean society. One advocacy presented in the book – 10 Ways to Improve Communications (Page 186) – focuses on the “art and science” of media (communications). The following tidbits are retrieved from that page:

# 3 – Media Industrial Complex
The CU will oversee the radio spectrum used for radio, television and satellite communications. The radio spectrum must be regulated on a regional level, because the islands are so close to each other and foreign states, that there must be coordination of the common resource pool – the spectrum is limited. This FCC-style (USA) oversight will also extend to internet broadband (wireless & wire-line) governance. With the CU’s financial reforms, the emergence of card-based and e-payment systems will allow for the full exploitation of the media business models. Also, the CU, through licensing, can mandate a certain amount of programming of the educational, inspirational and public service variety.

The Bottom Line on Old Media versus New Media
The internet and mobile communications has changed the modern world; many industries that once flourished (music retailers, travel agencies, book sales, line telephone companies), now flounder. Media distribution via the internet or mobile devices are referred to as “new media”, while old distribution channels like newspapers, magazines, TV and radio are referred to as “old media”. The mainstream (“old”) media is pivotal for “freedom of the press” as they are effective at standing up to big institutions like governments and corporations. The art of “good” journalism requires the deeper pockets that mainstream media bring to the market, but old media is dying financially. New media, on the other hand, is an aggregation of mainstream media. With the ubiquity of new media devices, people have freer, easier access and more options to news and information. On the plus side, there is now a greater diversity of ideas and viewpoints, on the minus side, with too many options, people tend to isolate their news consumption to only the views they want to hear. As new media matures, it is expected that it will take over the social responsibilities of old media, adopt the best practices of journalism, like fact checking (with the ease of information retrieval online), and finally return the industry to financial viability.

In summary, there are 2 Take-aways from this commentary:

(1) While there is  “Freedom of Speech”, there is no freedom from the consequences of speech.

(2) While there is “Freedom of the Press”, if the press is profit-oriented then popularity may be a greater priority than truth.

These dictate that there must be a stronger need for accuracy, integrity and professionalism in the age of New Media – disinformation can cause a lot of harm, fast.

There are lessons for the Caribbean to learn from other lands – America, China, and others. China is heavy-handed with their policing of media outlets, including online. This is definitely a bridge too far … for us in the Caribbean! India, though has a great model of a Chief Grievance Officer.

The Caribbean, sitting on the border with the United States of America allows us to look-listen-learn from the American experience. Our conclusion: We do not want to be America … we want to be better.

Yes, we can … get this right, and make our homeland a better place to live, work and play. 🙂

Sign the petition to lean-in for this roadmap for the Caribbean Union Trade Federation.

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