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.


Reader Comments (rss)

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  1.  
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    R. Miles (profile), Sep 28th, 2010 @ 3:25am

    From the quote "An opinion is like an as..."

    After all, it's an opinion.
    I would agree companies have a right to express an opinion. However, this opinion is based on measures and data, and if these are not available for review, or clarified to the reader, then they're no longer opinions but measures.

    This one's a fine line indeed, but I'm siding with the physicians on this one *unless* Blue Shield:
    -States its an opinion
    -Provides the data to form this opinion
    -Clarifies the information to the readers

    Mike, this type of "opinion" would similar to those who are against you (though really Techdirt) all the while having not read Techdirt to form their "opinion".

    That's not what I'd call an opinion. Would you?

     

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  2.  
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    Michial Thompson, Sep 28th, 2010 @ 4:01am

    Do you REALLY want an Insurance Company rating Doctors?

    Do you REALLY REALLY want to have an Insurance Company rating Doctors? And would you want to trust that rating?

    Health Insurance in this country already sucks, but having the Insurance Industry rating the Doctors seems to be about the worse idea that I have ever heard.

    Their ONLY incentive is to increase their proffit margins by as much as possible, so it would seem that their incentive would be to rate the doctors that have the lowest cost claims at the top rather than the doctor that has the best medical practices.

    The absolute LAST place I want to trust a rating on a Doctor would be a For MASS Profit company who's incentive is to make money from the medical claims.

     

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  3.  
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    abc gum, Sep 28th, 2010 @ 4:29am

    The doctors should create a system that rates insurance companies.

     

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  4.  
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    Anonymous Coward, Sep 28th, 2010 @ 4:54am

    This is totally cool, I just don't like the people doing the rating but that is fixable.

    I want to see ratings for politicians too.

     

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  5.  
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    jc (profile), Sep 28th, 2010 @ 5:35am

    Re:

    Actually, the doctors should create a system that rates themselves. After all, the best way to combat the insurance company ratings is to form their own, better, system which provides more information to potential problems.

    Of course, that will never happen because professional organizations never enjoy highlighting their crappier members.

     

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  6.  
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    jc (profile), Sep 28th, 2010 @ 5:36am

    Re: Re:

    problems = patients (i don't know how that happened.

     

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  7.  
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    Chronno S. Trigger (profile), Sep 28th, 2010 @ 5:39am

    Re: From the quote "An opinion is like an as..."

    Google uses a specific system of measures and data that it refuses to release to the public. Google's search results aren't opinions but measures. Do you side with the people who sue Google over their ranking?

     

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  8.  
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    Michael, Sep 28th, 2010 @ 5:41am

    Re: From the quote "An opinion is like an as..."

    "not available for review, or clarified to the reader, then they're no longer opinions but measures."

    What are you talking about? An opinion is an opinion - regardless of you informing someone that it is an opinion.


    "Mike, this type of "opinion" would similar to those who are against you (though really Techdirt) all the while having not read Techdirt to form their "opinion"."

    And you are suggesting it should be illegal to give an uninformed opinion? From this post alone, the police will be at your door shortly. Probably mine too. If you could sue everyone that says "this website sucks" without them showing the data they used to come up with it, we would be in pretty bad shape as a society.

     

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  9.  
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    Michael, Sep 28th, 2010 @ 5:43am

    Re: Do you REALLY want an Insurance Company rating Doctors?

    I totally agree that insurance companies are the worst place to get doctor ratings (I've worked for a bunch of them).

    However, allowing lawsuits against people that express an opinion you do not like is going to stifle a lot of important speech.

     

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  10.  
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    Michael, Sep 28th, 2010 @ 5:45am

    Re: Re: Re:

    apparently, you are in the insurance industry.

     

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  11.  
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    Matthew (profile), Sep 28th, 2010 @ 5:57am

    Re: Re: From the quote "An opinion is like an as..."

    Basing an opinion on a system of criteria doesn't make it less of an opinion.

     

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  12.  
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    Casper, Sep 28th, 2010 @ 7:21am

    Re: From the quote "An opinion is like an as..."

    I would agree companies have a right to express an opinion. However, this opinion is based on measures and data, and if these are not available for review, or clarified to the reader, then they're no longer opinions but measures.

    I hate to be the bearer of bad news, but that's wrong in every aspect. All opinions are based on some sort of facts. Generally they way an opinion springs into existence is through a entity possessing enough information to come to a conclusion one way or another, but not enough information to say definitively. For instance, if I state AMD processors are better than Intel processors, it is based on years of technical experience, many products tests through out the years, cost analysis, etc. Of course, that would still just be my opinion because I didn't cite enough evidence and have had that evidence 3rd party reviewed to make it a proven fact.

    This review system isn't a bad thing and is just an opinion. There should be tons more review systems out there to balance out any bias though. The reality here is that they don't like being measured. Just remember, doctors can be just as bad as insurance companies, after all, they are doing it to make money as well.

     

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  13.  
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    Chronno S. Trigger (profile), Sep 28th, 2010 @ 7:46am

    Re: Re: Re: From the quote "An opinion is like an as..."

    And thus, what Blue Shield did is not a problem.

     

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  14.  
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    Josh (profile), Sep 28th, 2010 @ 9:01am

    This lawsuit is a dead loser

    Our company (Avvo) faced a very similar lawsuit from attorneys upset over our ratings of attorneys. It was thrown out at the first opportunity, on First Amendment grounds (Browne v. Avvo, 525 F. Supp. 2d 1249 - Dist. Court, WD Washington, 2007).

    Debate the useful of these ratings all you want, but from a legal perspective, there's nothing to argue about here: The ratings are Blue Shield's opinion, period.

    Josh King
    General Counsel
    Avvo, Inc.

     

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  15.  
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    Anonymous Coward, Sep 28th, 2010 @ 9:58am

    Re: From the quote "An opinion is like an as..."

    If these ratings are like some other insurance company ratings, then I tend to agree with R Miles. In other rating systems for example, patient compliance is one of the measures. The system will say "35 percent of this doctor's patients refuse to comply with his/her instructions"
    This is not an opinion (at least not in the defamation sense).
    Defamation opinion is a very narrow category. Blue Shield will have to be careful how it publishes these measures (as well as what the measures actually say).

     

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    Anonymous Coward, Sep 28th, 2010 @ 10:05am

    Re: Re: Re: From the quote "An opinion is like an as..."

    Incorrect-whether we agree with it or not it can be the basis of a suit. Review libel and slander in the law. This could be a good case against them (more info needed to see if it is).

     

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  17.  
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    Anonymous Coward, Sep 28th, 2010 @ 10:10am

    Re: Re: From the quote "An opinion is like an as..."

    I hate to be the bearer of bad news but saying “This doctor is bad” or “This doctor is slow” is an opinion. Saying this doctor is bad because he never returns phone calls” is usually considered b y courts to be totally something one could sue for. Defamation can be a hard case to win, but it doesn’t mean these statements are necessarily opinion.

     

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  18.  
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    Anonymous Coward, Sep 28th, 2010 @ 3:28pm

    In Avvo, the court seemed to focus on the abstraction of someone being a "5" which is very similar to someone being...well...not great but not awful. That IS an opinion . It isn’t clear, from what little is presented here, that this doctor system is the same as Avvo, and therefore it isn’t a foregone conclusion that this is opinion.

     

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  19.  
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    Gene Cavanaugh, Sep 29th, 2010 @ 3:03pm

    Class action lawsuit against Blue Shield

    Knee-jerk reaction again.

    I don't practice that kind of law anymore, but I still have a feeling for it. One of the links says:

    "The program was developed by Blue Shield and the Pacific Business Group on Health, a coalition of 50 purchasers that is also involved with the California Healthcare Reporting Initiative, ..."

    It goes on to claim "consumers" and "doctors" as a sort of catch-all (standard "don't watch my right hand, watch my left hand" trick).

    I've never heard of Blue Shield being philanthropic; "Oh, you will die without X, let us pay for it!". I have heard of them being tough business people (too tough, IMO).

    What I think we see is a "drop your rates or we will smear you" campaign. That is, and should be, illegal. Unfortunately, it is also almost impossible to prove, and BS knows it - so yes, it likely won't go far.

    Poor ol' BS - feel sorry for them; well, actually, not!

     

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