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Feature: A doctor's best defense 

04-21-2020 08:58

How to protect your reputation and fight defamation

BY MELANIE PADGETT POWERS  SPRING 2020 

In 2018, a New York ob-gyn filed a defamation lawsuit against a patient for a Yelp review that accused him of fraud. In January 2020, a physician won a defamation case against an Indiana hospital after a nurse accused her by email of having alcohol on her breath while on duty. In Arizona, a cosmetic surgeon and his physician wife sued for defamation after a singer posted negative comments online about her procedure. The Arizona doctors won a $12 million jury award in 2011, but a judge overturned the large payout in 2015.

These cases may be on the extreme end of defamation of character, but in these days of pervasive social media and online review sites, physicians need to be on the lookout for harmful public comments. Not every insult rises to the level of defamation—which has a specific legal definition—or lends itself to a lawsuit. However, there are several steps physicians can take to protect their reputations and defend themselves in public.

Negative comments can appear in a variety of ways: from patients commenting on neighborhood discussion boards, physician practice Facebook pages or review sites such as Yelp, Google, Healthgrades and Zocdoc. Physicians may also face unfavorable reports in the media or be targeted by competitors or other clinicians.

“If you have a lot of contact with individual patients, and there is a clear physician–patient relationship, then it’s inevitable that you’re going to get online reviews,” says Robert M. Portman, principal at the law firm Powers Pyles Sutter & Verville PC in Washington, D.C., and SIR’s legal counsel.

Dealing with review sites

A key component of reputation management is to monitor review sites periodically to be able to address issues quickly. “No professional wants a false statement of fact about them circulating online,” says Jay Ward Brown, partner at the law firm Ballard Spahr LLP in Washington and outside counsel for SIR. Physicians can assign this monitoring task to “a staff person, who can keep track of what’s being said online and bring to the professional’s attention, not every single negative comment but ones that actually seem to be serious, false factual statements,” he says.

“I think it’s healthy for professionals to not read what people are saying about them,” Mr. Brown continues. “Let someone else screen it for you because we’re naturally too emotional when we read something about ourselves.”

Many physicians believe that restrictions from the Health Insurance Portability and Accountability Act (HIPAA) require them to remain silent because they are not allowed to talk about the particulars of a case. However, there are ways physicians can respond, and ignoring a situation is not the right approach, says Tom Clare, partner at the law firm Clare Locke LLP in Alexandria, Virginia, who specializes in defamation lawsuits.

“I think a lot of physicians don’t pay attention until it’s too late and the reviews have been out there for longer than they should have been,” Mr. Clare says. “They get traction, and it’s a lot harder to use legal tools to combat them if too much time has elapsed.”

While HIPAA prevents doctors from even confirming a person is a patient, you can respond in general terms. If a complaint is about grumpy office staff, for example, you can respond along the lines of “We are proud of our experienced and personable staff, who work hard to take care of our patients. We encourage anyone with any issues to reach out to us directly so we can address the matter.”

You can also contact the patient directly to discuss their complaint. If you can address their concerns, you may be able to convince them to take down the review. If they refuse, consider asking the patient for a HIPAA waiver, which will allow you to respond publicly. This does two things, Mr. Clare says: Either the patient will agree to provide the waiver and you will then be able to tell your side of the story publicly, or the patient will refuse, in which case, you can tell the review site that you requested a HIPAA waiver but the patient refused.

“It demonstrates that the patient is lying or exaggerating if he or she is unwilling to sign a waiver to allow the actual records and the actual truth to be told,” Mr. Clare says. “So, that can sometimes work really well. The patient may also realize that their credibility is impaired if they aren’t willing to allow the release of truthful information and may agree to take the post down instead.”

If the review was not written by one of your patients, contact the online review site. It can be a “high hurdle,” Mr. Portman says, to get a review removed, but it helps if you can show it’s fraudulent. “You would appeal to them to say, ‘This isn’t one of my patients.’ And you might also be able to see a pattern—like, all of a sudden, you see the same review showing up under a lot of different names but none of them are real names. You could go to the site and say, ‘This is obviously a scam. They’re just trying to undermine me.’ In some cases, the host will take those reviews down.”

Negative online reviews or public comments can sully a physician’s reputation.

Each review site has different rules for removing reviews, so read their policies before contacting the site.

Physicians are also sometimes targeted by other physicians, perhaps in specialty-focused Facebook groups or discussion boards. “You may see one and just turn the other cheek,” Mr. Portman says. “But if you see it again and again, then at that point, you would jump in. I think every case is going to be a little different—it depends on what was being said.”

Recognizing defamation

Physicians shouldn’t leap straight to legal action, but they also need to be firm in handling the situation. “I don’t think people should make idle litigation threats, but if somebody is persistently bad-mouthing you in a way that could hurt your practice, or at least your reputation in the specialty, you have to stand up for yourself,” Mr. Portman says.

Wherever comments are coming from, if you are unable to get the commenter to stop, it might be time to talk with a lawyer. Defamation of character is defined as a false statement of fact that has been published and causes you some type of harm.

“Not every unfriendly or unpleasant or negative comment is a false statement of fact about someone,” Mr. Brown explains. “A lot of the chatter that one sees online or that one sees in consumer complaints that are posted online is what we would call ‘ordinary opinion’—‘I thought he was a lousy doctor.’ That is not the kind of negative comment the law recognizes as a factual statement that can be proven true or false.”

On the other hand, false statements don’t have to financially damage your business to meet defamation criteria. It can be enough that it harms your reputation, according to Mr. Clare.

He says physicians sometimes approach him “sheepishly,” thinking they are unable to sue unless they can point to financial damages. But defamation law recognizes the difficulty of proving financial damages and has more relaxed rules for statements that “impugn” a person in their trade or profession.

It’s important to act quickly on defamation lawsuits because statutes of limitation are very short, only 1 year in most states, Mr. Clare says. Lawsuits would usually be filed against the person who made the comment, not a review site. Section 230 of the federal Communications Decency Act protects hosting sites that allow people to post online comments.

It’s also important to be able to show that you attempted to address the situation before jumping to legal action—for example, that you contacted the person and/or the review site. Again, ignoring the situation is not the right tactic. Physicians often tell Mr. Clare, “I didn’t want to give it any more attention by responding to it. I didn’t want to dignify it with a response.”

But, he says, without a written record that shows you disagree with the statements, if things escalate months later it’s harder to be able to say it was wrong and that you were damaged by it.

Negative online reviews or public comments can sully a physician’s reputation. Taking proactive monitoring steps and responding quickly to false statements are critical steps to preserve your reputation.

“Act quickly and act aggressively in your own defense,” Mr. Clare says, “because you go through life with one reputation and, for professionals, it is the lifeblood of a practice—in many ways, the most important asset to protect.”

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