RateMDs violates privacy of health professionals, class-action lawsuit claims

A medical stethoscope is seen in this undated image. (Shutterstock)

A lawsuit against RateMDs has been given the go-ahead by a B.C. Supreme Court judge who found the claim that the website violates the privacy rights of medical professionals is not "bound to fail."

Justice Michael G. Thomas certified the multi-province class-action earlier this month and his decision was posted online Monday.

RateMDs has profiles of doctors and other health-care professionals, allows users – including anonymous ones – to submit ratings and reviews, and creates geographically based rankings based on these reviews, the court heard.

The civil claim was filed by Dr. Ramona Bleuler, also known as Ramona Penner, whose profile was published on the website – where it remains – without her "knowledge or consent."

In addition to arguing that the profiles are created without consent, the claim says they can not be removed by doctors, contain unverified reviews, and "are used as part of a for-profit commercial enterprise by the defendants."

Bleuler, the judge said, concedes that individual users who post reviews are not violating the rights of doctors. However, she alleges that the company is.

The particular rights she claims are being violated are the right to be left alone, the right to be free from unwanted publicity and the right not to have one's name used for commercial purposes without consent, which is also known as "misappropriation of personality."

The company argued that the information used to create the profiles – which include things like names, addresses, phone numbers and areas of practise – is publicly available and "non-personal."

The judge said the mere fact that the information is available is not enough to prove that the site is not violating privacy rights.

"The privacy interests alleged to be at stake in this case extend beyond the health professionals’ names, contact information and the manner in which they perform their professional activities," the decision says.

"Rather, they include the plaintiff’s claimed privacy interest in not having all of that information solicited, collected, centralized and comparatively ranked against other health professionals by a commercial entity for the purpose of generating profit."

The company also argued that health professionals do not have a reasonable expectation of privacy when it comes to the ratings and reviews and that Bleuler's lawsuit had an ulterior motive.

"The defendants suggest the plaintiff is simply attempting to shoehorn a privacy claim to stifle warranted criticism with respect to how she practices medicine," the decision says.

The judge did not agree.

Bleuler's claim argues, in part, that the rankings and reviews ought to be viewed as "a person’s private information." In support of this, she notes that regulatory bodies for health professionals limit how practitioners are allowed to advertise, including restricting the use of both "comparative rankings" and "patient testimonials."

Practitioners are not allowed to share these things themselves, the claim argues, so the company should not be allowed to either.

Thomas agreed that there was an argument to be made that the rankings and reviews may be private information given that doctors and others are restricted in terms of what they can say publicly.

"Health professionals are limited in their ability to respond to reviews on RateMDs.com that they consider to be a violation of privacy or damaging to their reputation without breaching patient confidentiality or violating restrictions on their advertising," the decision says.

The claim also alleges that the chief "commercial value" of the site is the rankings and reviews – which it actively solicits – and that it is profiting off of sharing private information without the consent of doctors who have not paid to have their profiles "verified" by the site.

The privacy rights of doctors are not only violated by having this information shared without their consent and for profit, the claim argues, but by the set-up of the site, which essentially compels them to engage with it.

"Creating a repository of reviews and rankings consisting of unverified information essentially requires health professionals to participate in the site to ensure the accuracy of those reviews and rankings," the decision says.

None of the claims have been tested in court, but the lawsuit was certified and will proceed.

"I do not find that it is plain and obvious that the plaintiff does not have a reasonable expectation of privacy over the information published by the defendants," Thomas wrote.

"This information, which in some cases is publicly available and generally concerns professional activities, may nevertheless give rise to a violation of privacy if collected, managed and disclosed by the defendants in the manner and circumstances alleged."

Those eligible to participate include "all living, current or former, health professionals" in B.C., Manitoba, Saskatchewan, or Newfoundland and Labrador who have had profiles on the site excluding those who "ever paid for a paid subscription."