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Online Reviews – to Respond or Not to Respond?

Wednesday, September 6, 2017   (0 Comments)
Posted by: Adrienne J. Hersh, JD
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Online Reviews – to Respond or Not to Respond?

 

The ICS has previously written about whether or how to respond to negative reviews on physician rating websites.  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 were suggested by the NACA attorneys.  Some suggested posting a generic 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 contact the office to sign a HIPAA authorization.  Other attorneys (and I) believed that this approach poses some risk if not worded carefully enough to avoid disclosure of 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 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.

 

Another NACA attorney reported success with a different approach:  preparing a lawsuit for defamation.  Defamation is the publication of a false, injurious statement about the good name or reputation of another, and it applies equally to statements made on line as in person.  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. In Illinois, impugning a person's ability in his or her trade or business is in a special category considered particularly egregious.  The statement must be demonstrably false to be actionable.

 

When proven, the offending commenter may be required to pay financial damages to the subject of the defamation.  My NACA colleague reported success in having offending commenters remove defamatory on line comments when the attorney (representing the physician) notifies the commenter of the commencement 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 judge 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.

 

Keep in mind that the commenter is the only available defendant in a defamation action.   The Internet service provider and the websites are exempt from liability under Section 230 of the federal Communications Decency Act of 1996 (47 U.S.C. § 230).  Therefore, the threat of fling 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.

 

Note: This FAQ is an excerpt from the article National Association of Chiropractic Attorneys Meeting June 2017: Online Reviews; FAA Exams; Service Animals in the Office by Adrienne Hersh, JD.

 

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