By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law
Defamatory attacks against health care professionals have become increasingly prevalent as more and more review sites join the world wide web. This allows patients to post virtually anything they want – good or bad – about a physician or any professional. With more physicians becoming employees of hospital systems or large healthcare institutions, adverse surveys, reports or reviews can affect advancement, bonuses and basic income.
Online Review Websites.
Internet ratings on review sites like Vitals.com and Yelp.com can range from snide comments about the patient’s waiting time in the physician’s office to vicious attacks that can have a serious implications for a physician. In many cases, the review, comment, or rating may be a purposely untrue statement by a disgruntled patient, competitor or former employee. When the comment is posted, search engines like Google, Yahoo, Bing, AOL, or MSN may bring up the false statement every time someone searches for that doctor’s name. This can cost doctors both their reputation and their business, especially if they start losing patients because of bad reviews.
Many health professionals are now seeking legal strategies to combat alleged online libel and defamation in order to save their reputation and their practice. However, not all negative online comments or ratings meet the actual definition of “defamation.” Defamation generally is a factual statement that can be proven true or false. For example, if a patient writes that she had a procedure performed by a doctor, this is a statement of fact that can be confirmed or disproved. However, if someone writes about a doctor’s poor attitude during a visit, this statement is usually considered to be an opinion which cannot necessarily be proven true or false.
Additionally, online review sites usually have a set of clear guidelines when posting public reviews. For example, Google has a list of prohibited and restricted content in their terms of use. The most common prohibited and restricted content includes: spam or fake content, impersonation, illegal or sexually explicit content, dangerous and derogatory content and conflict of interest. Click here to view these examples in Google’s terms of use.
If you find any statements about you or your practice that may be considered defamatory or prohibited content, the following are some legal measures you may take to try to stop the inflammatory comments:
1. Identify person making comments.
Attempt to identify the person making the negative remarks. You may find it is a disgruntled former employee or a friend or relative of the patient who does not have any first-hand knowledge. See other tips below on how you might do this. Contact that person directly.
2. Check your office records.
Your own records should be checked. Your notes about office visits or procedures, your appointment schedule or your own billing records may help you identify the patient who wrote the review or comment. If you think you may know who wrote a comment, try to contact the patient directly to discuss his or her concerns and request that the comment be removed. Sometimes you will find that you never treated this person or that the patient has the wrong physician.
3. Consult with an attorney.
Before making any decisions about the contents of a comment, consult with an experienced attorney for guidance. An experienced attorney will be able to determine whether the internet posting is considered an opinion, spam or defamation.
4. Send a letter to the website, website host, owner and internet service provider.
Once the individual responsible for the post has been identified, doctors can contact the patient directly to ask that the post be removed. If the patient refuses, a doctor should request that his or her attorney send a letter warning the poster of potential legal action if the post is not removed from the website. If that doesn’t work, the physician should have his or her attorney send a letter demanding the comments be removed to the website, website host, owner and internet service provider.
5. Contact the website.
If you are unable to determine who may have written something online, or if the person refuses to take the comment down, try contacting the website that the review or comment is posted on. Many websites have policies against spam and defamatory statements. Contact the website to ask about its policy and get the comment removed. However, be very careful about signing up as a participant on the website and, especially, of agreeing to its terms of service (TOS) or terms of use (TOU). See below.
6. Avoid agreeing to the website’s terms.
Avoid the urge to join the website, subscribe to the website or otherwise agree to the website’s policies and procedures. You may be agreeing to a legally enforceable contract that waives your rights to sue for defamation or other course of action. Every website has Terms of Service (TOS) or Terms of Use (TOU), usually with a simple block to check to acknowledge you agree to all of its terms. Do not do this. You may be waiving all of your rights to legally challenge defamatory comments that are published.
7. File a lawsuit.
Filing a lawsuit should be a physician’s last resort in handling defamatory online comments. Legal proceedings can often take years to complete and can draw more negative attention to the physician. However, in many cases the only way for a physician to defend his or her reputation is in court.
Before you can file a lawsuit you must check state laws regarding statute of limitations in which to file defamation suits. If the negative comment falls outside this statute of limitations, you will not be able to sue. You will also need to review state defamation and false light laws to see what are considered appropriate claims. Remember it is difficult to sue someone for an opinion, and many online reviews can be considered and can’t be proven true or false. It is also usually best to sue the individual poster, not the website, as The Communications Decency Act of 1996 protects Internet service providers from liability for third-party comments.
8. Seek a subpoena.
If the website provides no assistance in removing the comment, you and your attorney can seek a subpoena ordering the Internet service provider to give identification data. Generally courts will grant a subpoena during a defamation investigation. Identification information could be an email address, name or location information of the poster.
9. Request a court order.
If all requests for a post to be removed are unsuccessful, doctors can request a court order or an injunction. A doctor must be able to show that the comments are probably false and are causing irreparable harm to their reputation or practice in order for a judge to demand the comments be removed. Usually you will be required to file a petition or complaint (lawsuit) first.
There are also alternative methods for protecting your reputation online. Be proactive and make sure you are putting out positive information about yourself and your practice through your website, social media sites, and blogs. This will help bury negative comments that appear on search-engine results, making it less likely that potential patients will see bad reviews.
Physicians should also distribute surveys to their patients, which provide an instant forum for patients to express their feelings about visits. Such tools as having your own internal office complaint/grievance procedure for patient complaints may help. If patients feel that they are able to provide immediate feedback to a physician, they may be less inclined to share their feelings online.
Remember to be persistent when you are trying to fight negative online reviews! Large corporations such as Google offer the ability to flag certain negative reviews but don’t always remove it. It pays to speak to a person on the phone so that you can explain the reasoning that the review needs to be removed. Don’t give up!
The following court documents pertain to cases involving defamation against physicians:
A copy of the Preliminary Injunction filed in Barry Eppley, MD, v. Lucille Iacovelli, in the United States District Court for the Southern District of Indiana, Indianapolis Division.
A copy of the Notice of Removal filed in Doctor John Doe, Doctor John Doe Incorporated and Jane Doe v. Google Inc., in the United States District Court for the Northern District of Illinois, Eastern Division.
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