Legal recourse: Taking action against defamation on physician-rating sites

This article is the second installment in a series on Web-based physician rating services. The first installment explored DOs’ overall views of such websites.

Physician-rating websites, many of which allow anonymous postings, make it easy for angry patients, unscrupulous competitors and anyone bearing a grudge “to engage in aggressive character assassination,” notes Al Turner, DO, an osteopathic manipulative medicine specialist in Portland, Ore. Although physicians face more hurdles than do many other types of professionals, DOs and MDs can proactively protect and defend their online reputations, say lawyers with knowledge of Internet libel and health care law.

Because of patient privacy provisions in the Health Insurance Portability and Accountability Act (HIPAA) of 1996, as well as state patient-confidentiality laws, physicians generally cannot publicly repudiate false and injurious comments posted by patients on rating sites.

But if those negative comments meet the criteria for defamation—specifically libel, which applies to the written word—DOs and MDs can and should seek legal recourse, says Gary D. Nissenbaum, JD, the managing principal of the Nissenbaum Law Group, which has offices in Union, N.J., New York City, Philadelphia and Dallas.

“The First Amendment gives Americans the right to free expression in a healthy public debate,” Nissenbaum notes. “But there is no First Amendment right to defame someone.” However, because First Amendment protections are so broad, the courts impose rigorous requirements on individuals to prove they have been defamed, he says.

To satisfy the legal definition of defamation, comments need to be false, communicated to a third party and damaging to the injured party’s reputation. But it isn’t always necessary to prove damages. Victims of one category of defamation—known as per se—do not need to demonstrate that they’ve actually been harmed, points out Nissenbaum, whose firm runs an Internet defamation law blog.

Although the law differs from state to state, variations of libel per se include false allegations that someone committed a heinous crime or is infected with a loathsome disease and false attacks on a person’s professional character or status. False attacks generally are the most actionable for physicians, Nissenbaum observes.

Public figures additionally have to prove malice (willfulness or intent) to make a case for libel, including libel per se. “A physician might be considered a public figure in the community depending on the extent to which that physician has injected himself or herself into the public eye,” Nissenbaum says.

Opinion versus defamation

In his third year of a St. Joseph Mercy Health Center residency in dermatology in Royal Oak, Mich., Christopher A. Messana, JD, DO, points out that courts generally do not consider negative opinions to be defamatory. To be labeled libel, false adverse statements must include verifiable factual errors. “If someone says on a rating site that a physician is a jerk, that would be considered opinion,” Dr. Messana says.

The background of the person disparaging another also comes into play when assessing a case for libel, Dr Messana notes. For example, if someone erroneously posts online that a physician “is schizophrenic,” that statement likely would be considered opinion if the poster is a layman rather than a mental health expert or physician. A layman would not be expected to have a medical understanding of the term schizophrenic, he explains.

Dr. Messana asserts that most of the negative comments he has seen on physician rating sites are not worth redressing. Remarks pertaining to physicians’ lack of punctuality, abrupt bedside manner and rude staff should be considered wake-up calls rather than defamation, he says. “We need to do a better job of recognizing that we are in a customer service profession,” Dr. Messana says. “Such comments are reminders that we need to have excellent communication skills and keep wait times reasonable.”

Physicians should also assess the proportion of their negative and positive reviews, advises Jeffrey Segal, MD, JD, the founder and chief executive officer of Medical Justice, a legal advocacy organization that specializes in protecting physicians from Internet defamation and frivolous malpractice suits. “Don’t freak out over a single negative post on a physician rating site,” Dr. Segal cautions. Having only positive comments on a rating site can look suspicious, as if the reviews were planted by the physician, he notes.

It is the more egregious assaults on physicians’ medical knowledge and integrity that should be addressed, according to Dr. Messana. “If someone falsely assails a physician’s clinical acumen or falsely accuses a physician of molestation or another reprehensible crime, that would be defamation,” he says.

“The first step [after getting slammed online] is to evaluate the comments and the amount of publicity they are likely to receive and make a judgment about how harmful they are and what should be done,” suggests Mitchell L. Marinello, JD, a partner with the Chicago law firm Novack and Macy, in a Q-and-A in the March issue of Smart Business Chicago. “Overreacting to negative comments can create more bad publicity or cause a disgruntled critic to become even more vocal.”

The next step, according to Marinello, is to ask the rating site if it will remove the defamatory comments because sometimes such comments violate a site’s policies.

1. Stephen Blythe, D.O. on April 4, 2011, 6:45 a.m.

   The idea of a consent or waiver might be the only protection. Even if someone posts false information online, how do you prove it is false without violating patient confidentiality? A waiver as part of a consent to treat should perhaps not only give you the copyright of any online postings, but authorize you to use the patient’s medical records to rebutt any public complaints. The good news is that if you are punctual, polite, and caring and your staff is the same, you will get lots of positive reviews on these sites. Most of the negative reviews, as noted, ate not statements about competency or claims of malpractice, but comments on arrogant or abusive behavior on the part of the physician or staff. As noted, these should serve as a wake-up call. If you have lots of negative postings, you are dong something wrong, and leaving patients unhappy – which means you have a higher risk of being sued. We have to be top notch clinically, but we also have to offer good customer service.

2. Court Watch on Oct. 19, 2012, 3:16 a.m.

   State Supreme Court Hears Online Doctor Rating Defamation Suit SEP 2012

   Excerpted from Star Tribune, September 4, 2012, Maura Lerner

   Two years ago, a Duluth neurologist, Dr. David McKee, sued the son of an elderly patient for defamation over some negative comments that were posted on rate-your-doctor websites.

   On Tuesday, the state’s top court was asked to decide whether the lawsuit should finally go to trial, after the case was thrown out by a lower court and reinstated on appeal. The lawsuit is one of a growing number of legal battles testing the limits of free speech on the Internet.

   A good portion of the oral arguments were devoted to the meaning of the words that Dennis Laurion, 65, used to describe his family’s encounter with McKee in April, 2010, when Laurion’s father, Kenneth, then 84, was hospitalized with a stroke.

   John Kelly, Laurion’s attorney, noted that Internet sites are a “free for all” for people to share opinions and that his client’s comments were perfectly appropriate. “We have a word, the word ‘tool,’” Kelly told the justices. “When you look at the word, you have to ask: Is it defamatory?” He argued that the phrase, while “it clearly is not a compliment,” is no worse than “calling someone an idiot or a fool.”

   During questioning, some of the justices seemed to agree. “Saying someone’s a ‘real tool’ sounds more like an opinion than a statement of fact,” Justice Christopher Dietzen said. Chief Justice Lorie Skjerven Gildea had a similar reaction. “The point of the post is, ‘This doctor did not treat my father well,’” she said. “I can’t grasp why that wouldn’t be protected opinion.”

   Full Article:
   http://www.startribune.com/printarticle/?id=168552176