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Physician Rating Websites and Other Public Data Sources

Thursday, July 27, 2017   (0 Comments)
Posted by: Adrienne Hersh, J.D.
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Physician Rating Websites and Other Public Data Sources: Information or Defamation?

It's no revelation that each leap of technology brings a new set of unanticipated consequences. Nowhere is this more apparent than in information technology, where the exponential availability of information on the Internet is both a blessing and a bane.

 

Consumers have at their fingertips a multitude of sites rating everything from hair salons to hip joint replacements, but the sources of information are often anonymous, and the potential damage from inaccurate information is huge. The practice of rating health care professionals existed before the Internet, but the ease of input may make dissatisfied "customers" more likely to post reviews. For this reason, the pool of material is hardly a scientific sample and is often negatively skewed. Here is some information about what physicians should do to monitor their Internet ratings and what recourse they have when negative information affects their business and professional reputations.

 

The Legal Background: Defamation Per Se vs. Free Speech

The First Amendment of the Constitution guarantees the right of free speech in in all forms, subject to certain limitations.  One such limitation is the prohibition against defaming others to third parties.  Although it may be harder to enforce on the Internet, defamation law applies equally to statements made in person as on line. Under common law, a person can be held financially liable to another for defamatory statements. 

 

Defamation is legally defined as the publication of a false, injurious statement about the good name or reputation of another. A statement is defamatory if it impeaches a person's integrity, virtue, human decency, respect for others, or reputation, and lowers that person in the estimation of the community or deters third parties from dealing with that person. Note that the statement must be false to qualify; truth is a defense to a charge of defamation.

 

Generally, proving defamation requires:

  • that the defendant made a false statement;
  • that the statement concerned the plaintiff (the physician);
  • that the defamatory statement was published or communicated to a third party or parties by defendant; and
  • that the defamatory statement caused financial damage to the plaintiff physician.

In Illinois, impugning a person's ability in his or her trade or business is in a special category considered so egregious that it is deemed defamatory per se, so that the victim is not even required to prove that he or she has been financially damaged.

 

The elements of defamation demonstrate that the law seeks to protect a person's professional reputation from false and harmful statements. However, the law balances that policy with the Constitutional right to free speech. The First Amendment permits the expression of opinion, which would not qualify as a false "statement," and would defeat a claim of defamation. As a result, the issue in a defamation case often is whether the offending material consists of opinion or false statement of fact.  As frustrating as a negative review may be, physicians must remember that the law walks a fine between the interests of the commenter and the subject of the comments.  Of course, this balancing of rights applies to all reviews, not only those of health care providers.  

 

Start at the Very Beginning: The State of Illinois

Everybody should routinely monitor his or her Web presence, including physicians. As a business and a profession, your health care practice is subject to a variety of Internet postings.

 

A good place to start is the most basic of searches, one that applies to all Illinois physicians: the “License Lookup” feature of the Illinois Department of Financial and Professional Regulation website (www.ildfpr.com). Even if you are not listed on any review or complaint sites, you are listed here, even posthumously, if you have ever held a license. Although this site does not contain patient reviews, it reflects basic licensure and disciplinary information, including the licensee's name, business name, license number, license status, city and state, original issue date, current expiration and whether the license has ever been disciplined. If the license has been disciplined, the user may click on that field to link to a window displaying the disciplinary action, start and end dates and a brief description of the reason for the action.  Physicians should review their entries for accuracy.  The Department has, on occasion, revised entries that have been challenged by the licensee as inaccurate, including, for example, the description of a disciplinary action.

 

In addition to the basic “License Lookup,” the Department also displays the "Physician Profile." This feature is mandated by the “Patients’ Right to Know Act,” which requires the IDFPR to post the following information for each physician:

  1. the full name of the physician;
  2. a description of any criminal convictions for felonies and Class A misdemeanors during the most recent 10 years;
  3. a description of any final Department disciplinary actions within the most recent 10 years;
  4. a description of any final disciplinary actions by licensing boards in other states within the most recent 10 years;
  5. a description of revocation, involuntary restriction of hospital privileges or resignation of hospital staff membership for reasons related to competence or character.  Only cases which have occurred within the most recent 10 years shall be disclosed by the Department to the public;
  6. all medical malpractice court judgments and all medical malpractice arbitration awards in which a payment was awarded to a complaining party during the most recent 10 years and all settlements of medical malpractice claims in which a payment was made to a complaining party within the most recent 10 years. A medical malpractice judgment or award that has been appealed shall be identified prominently as "Under Appeal" on the profile within 20 days of formal written notice to the Department. Information concerning all settlements shall be accompanied by the following statement: "Settlement of a claim may occur for a variety of reasons which do not necessarily reflect negatively on the professional competence or conduct of the physician. A payment in settlement of a medical malpractice action or claim should not be construed as creating a presumption that medical malpractice has occurred." Nothing in this subdivision (6) shall be construed to limit or prevent the Disciplinary Board from providing further explanatory information regarding the significance of categories in which settlements are reported. Pending malpractice claims shall not be disclosed by the Department to the public. Nothing in this subdivision (6) shall be construed to prevent the Disciplinary Board from investigating and the Department from disciplining a physician on the basis of medical malpractice claims that are pending;
  7. names of medical schools attended, dates of attendance, and date of graduation;
  8. graduate medical education;
  9. specialty board certification. The toll-free number of the American Board of Medical Specialties shall be included to verify current board certification status;
  10. number of years in practice and locations;
  11. names of the hospitals where the physician has privileges;
  12. appointments to medical school faculties and indication as to whether a physician has a responsibility for graduate medical education within the most recent 10 years;
  13. information regarding publications in peer-reviewed medical literature within the most recent 10 years;
  14. information regarding professional or community service activities and awards;
  15. the location of the physician's primary practice setting;
  16. identification of any translating services that may be available at the physician's primary practice location; and
  17. an indication of whether the physician participates in the Medicaid program.

A physician may elect to have his or her profile omit the information under subdivisions (12) through (14) above regarding academic appointments and teaching responsibilities, publications, and professional and community service awards.

 

A physician who has retired from active practice may use the title "Retired" in his or her physician profile. If the physician uses that title in the profile, he or she is not required to provide office addresses and other practice specific information.

 

Physician, Google Thyself

Once you have reviewed the IDFPR site, the next step is to do general search using a search engine such as Google or Yahoo. Physicians should note any references to their professional ability and reputation. You should also check for proprietary ranking systems such as HealthGrades.com, rateMDs.com, etc., as well as patient complaint boards and blog sites. You should note and print any questionable material that you may want to challenge or that may be legally actionable, because some of these pages may be removed and be impossible to retrieve later.

 

On Line Reviews – to Respond or Not to Respond?

Providers must navigate a fine line between protecting themselves against unfair criticism and protecting patient confidentiality.  The proliferation of rating websites and social media makes it very likely that most doctors, even those with limited internet presence, will be listed in some rating sites.

 

In the past, the ICS has recommended that doctors respond to negative comments on line, doing so cautiously to protect patient confidentiality.   The ICS now advises, rather than responding in every case, that doctors consider a few possible approaches and decide a course of action based on a careful case-by-case evaluation.  HIPAA enforcement has become more stringent, and the problem with responding to any comment posted by a patient is that, without a patient authorization, the physician is not even allowed to confirm that the commenter is a patient.  Providing any answer that affirms the commenter’s patient status, even if the answer does not disclose specific health information, violates HIPAA privacy regulations. 

 

A couple of approaches have been suggested by various health care attorneys.  Some suggest that physicians respond to a negative review by posting a response, without confirming the patient’s status or identity, stating that the physician cannot comment on specific situations without a HIPAA compliant patient authorization, and inviting the person to submit a signed HIPAA authorization to the office.  The authorization would have to state that the patient is giving the physician the authority to disclose protected health information on the website on which the patient posted comments.  However, even without an authorization, the physician in this situation could also provide general, non-identifiable information in response to the negative comments.  For example, if the patient stated the physician only spent three minutes doing the exam and treatment, the physician could post that he or she always follows a policy of spending at least 20 minutes with each patient. This response would protect the patient's identity while providing useful information in defense of the doctor.  Nonetheless, the ICS cautions that this option poses some risk unless worded in a way that completely avoids disclosure of the commenter’s patient status and other protected health information.  

 

The ICS believes a safer approach is for the physician to post a general response to a negative comment, such as: “In keeping with state and federal privacy laws, this office does not comment on personal health information of any specific individual, whether patient or non-patient.  However, we strive to continuously enhance our patient experience, and we encourage those who wish to share information with us to do so in a non-public format by calling our office at ____________________.”  In this way, the physician does not confirm the commenter’s status as a patient, but demonstrates a willingness to accept comments and suggestions in a confidential manner.  

 

Filing A Lawsuit – A Last Resort

 

Where the physician has been unable to arrive at an amicable resolution and is considering litigation, the initial step is to identify the responsible party. Of course, the patient who posted the statement is an obvious defendant. However, it's not always easy to determine the identity of the person making the statement due to the anonymity of the Internet.

 

Unfortunately, the commenter is the only viable defendant, because the Internet service provider and the websites are exempt from liability. Section 230 of the federal Communications Decency Act of 1996 was a landmark piece of Internet legislation in the United States (47 U.S.C. § 230. Section 230(c)(1)) that provides immunity from liability for providers and users of an "interactive computer service" who publish information provided by others.  Therefore, the threat of filing of a defamation case against the provider or the site will be of little or no use in having the site itself remove a negative comment; any removal will need to be initiated by the person who posted the comment.

 

If the goal is to have offending commenters remove defamatory on line comments, some health care attorneys have reported success when the attorney (representing the physician) notifies the commenter of a defamation lawsuit.  The caveat here is that the statement must legally qualify as defamatory; in other words, it must be false and otherwise meet the definition of defamation.  Otherwise, the court will deem the lawsuit to be an “abuse of process,” and the person who files it may have create his or her own liability for filing a frivolous lawsuit.  A defamation lawsuit against a disgruntled commenter is simply one tool to consider when the comment is clearly false and injurious to the doctor’s professional reputation.  The goal is not solely to recover financial damages, but, more importantly, to have the comment removed.

 

You and your attorney will need to make a hard assessment of the viability of your case. Most experts believe that most postings to physician rating websites are opinions, and if taken to court, would not be deemed actionable.  You will also need to weigh the strength of your case against the damage that is being caused by the defamatory statement. In many cases, even if an isolated statement is technically defamatory, it may not be worth suing if it is not causing significant problems to your practice.

 

On the other hand, if a patient that you can identify states an untruth and pursues a focused, persistent attack that is having an impact on your practice, you may have no choice but to seek a court order that the offending comments be removed, and seek money damages against the patient who wrote it., traditional defamation law will apply to on line statements if the elements are proven. Illinois requires that suit be filed within one year of the publication of the statement; otherwise the claim is barred.

 

The Bottom Line

The best course is to routinely monitor your Internet standing – all professionals should be aware of public statements pertaining to them -- and seek removal of false Internet information whenever possible. Professionals need to accept that the availability of information on the Internet continues to expand, and that a certain amount of privacy has been compromised for everyone. Physicians may also need to develop a thick skin when it comes to rating sites, because they are probably here to stay, and litigation is an expensive process with no guarantee as to outcome. Nonetheless, where Internet posts rise to the level of defamation and cause appreciable damage, physicians can still take some comfort in the fact that they are protected under traditional defamation law.

 

 

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