In my last column, I gave you some options for handling those inevitable negative online reviews without violating patient confidentiality or pouring fuel on the fire. Your options in such cases are limited by HIPAA rules (among others) and by the patient’s right to free expression under the First Amendment.
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– although you need to carefully consider the situation before going to war with a critic.
Critics have legislative protection in many states, called anti-SLAPP (Strategic Lawsuit Against Public Participation) laws, which allow judges to summarily dismiss lawsuits that they consider retaliatory or intended to intimidate and silence citizens speaking out on issues of public interest – such as health care. Federal courts recently nullified anti-SLAPP laws in Washington and Minnesota as unconstitutional; but as I write this, similar laws remain on the books in 28 other states, plus Washington, D.C., and Guam.
There is also a federal law – the Consumer Review Freedom Act of 2016 – which prohibits any attempt to prevent consumers from giving “honest” reviews about products or services. No law protects demonstrably false statements, of course.
The first thing to do before taking any action is to determine whether that defamatory review is, in fact, defamatory. Defamation is generally defined as the act of making false statements “with malice” – that is, in a deliberate attempt to damage someone’s reputation. The main issue in most defamation cases is whether the statements in question are merely strong opinions, which are protected by the First Amendment; or “assertions of verifiable fact”, which are not.
For example, “Dr. ____’s office does not clean its instruments properly” is a statement that can be proven true or false. Therefore, it is an assertion of fact, not an opinion, and if false, vulnerable to a defamation suit. The only unimpeachable defense in such a suit would be to prove that the assertion is true.
Dr. Joseph S. Eastern
It is worth noting that attempting to disguise assertions of fact as opinions, simply by calling them opinions – for example, “In my opinion, Dr. ____’s office does not clean its instruments properly” – does not make them unverifiable or immunize them from litigation.
Once you have determined that the review fits the legal definition of defamation, the usual first step is to contact the website where the review is posted. Most rating sites are loath to intercede in arguments. (for example, Yelp’s official position: “We don’t typically take sides in factual disputes, and generally allow Yelpers to stand behind their reviews.”) They also have their own legal shield: The U.S. Communications Decency Act, which prohibits lawsuits against websites for publishing reviews, comments, and other third-party content, unless the site itself changes or somehow alters the meaning of the original post.
Even so, websites have their own reputations to protect; they don’t want to be used as venues for acts of defamation, nor be seen as perpetuating false or misleading information, and can sometimes be persuaded to take down really egregious hatchet jobs. It is certainly worth a try – but it may take a lawyer’s letter to get their attention.
If the site won’t remove it, you’ll have to try to persuade the patient to do so. Most attorneys recommend sending a “cease-and-desist” letter, explaining why the review is defamatory and demanding its removal. You should carefully consider the situation before sending such a letter; it may fuel the patient’s anger and trigger additional online attacks.
If a cease-and-desist letter is ineffective, your only further option is to file a lawsuit. Such cases are rare, and success even rarer: Of the 29 health care–related defamation cases that I was able to find in the public record, 19 were summarily dismissed; in 6 of those cases, the plaintiff was ordered to pay the defendant’s court costs. The other 10 were settled on undisclosed terms; only one, apparently, involved a cash payment to the plaintiff.
If you believe that the defamation is causing you real, monetary damage – enough to outweigh the costs of litigation – and you can prove that the allegations against you are false, it might be worth the considerable time, money, and emotional energy that litigation demands to pursue it.
As always, never venture into the litigation jungle without the support and guidance of an experienced attorney.
Dr. Eastern practices dermatology and dermatologic surgery in Belleville, N.J. He is the author of numerous articles and textbook chapters, and is a longtime monthly columnist for Dermatology News. Write to him at dermnews@mdedge.com.