Online review sites have revolutionized the way consumers choose everything from takeout food to beauticians. But few industries have been more disrupted by online reviews than the medical profession.
For healthcare professionals, whose competence or lack thereof is literally a matter of life and death, online flamethrowers can have a devastating impact on their reputations and practices. Sites like Yelp, HealthGrades.com, RateMDs.com, or Vitals.com have “realigned the power structure that existed between doctors and patients,” giving patients far more influence than they have ever had, David Ardia, co-director of the Center for Media Law and Policy at the University of North Carolina, told the Boston Globe. “The Web is just chock-full of people commenting on their experiences. Doctors have reacted with a great deal of hostility toward this.’’
Unlike other professionals or service providers, who can give as good as they get in answering reviewers, medical professionals must tiptoe through a legal minefield in responding to online reviews. That required reticence is the result of the federal patient privacy law known as HIPAA. The law (officially known Health Insurance Portability and Accountability Act) places strict limitations on what a doctor can and cannot write in a review section. Medical professionals are barred from so much as acknowledging a reviewer has been a patient, let alone defending treatment decisions.
“Yelp is the bane of many doctors’ existence,” Dr. Jonathan Kaplan, a San Francisco plastic surgeon, told the San Francisco Chronicle recently. “A patient can be really vocal, but you cannot. It’s not a fair playing field.”
In Responding To Medical Reviews, First Do No Harm
Advising medical professionals dealing with online reviews is one of the most delicate areas of my practice. Ignoring negative reviews can jeopardize a physician’s livelihood. But responding in the wrong way can trigger all kinds of unpleasant and often unanticipated consequences. Later on in this piece, I’ll look at the case of a doctor whose aggressive legal response to a bad review boomeranged on him, by drawing attention to the review to a much larger audience. I’ll also look at a healthcare business that was so proud of its positive reviews that it posted them on the company website–triggering a fine from regulators because the company hadn’t gotten required clearance from the reviews’ authors.
My first advice to medical professionals is to keep a cool head, and never respond emotionally to an online review. The second advice is to educate yourself on what responses are and aren’t permitted under the law. Yelp has posted some helpful guidelines for responding to medical reviews.
But the area is so complex and the consequences of a misstep are so grave, you’re best off consulting a lawyer to help you deal with online reviews. It’s always preferable to resolve disputes before they get to a courtroom. Talking to patients honestly and empathetically can often head off differences of opinion before they become full-blown legal dust-ups. But at times legal action–or the threat of legal action–is the only thing that can make an unreasonable reviewer desist from wrongful conduct.
I’m currently dealing with a case of a woman who has attacked a physician client of mine online after a surgical procedure didn’t turn out the way she had expected. The main reason for the sub-optimum result was that the patient completely ignored the post-operative guidelines. However, that didn’t stop her from attacking my client online in vicious, defamatory terms. And then to add insult to injury, she enlisted friends–who had never been treated by the doctor–to echo her attacks with malicious and patently false reviews to attempt to extort money from the doctor. In cases such as these, a physician definitely needs a lawyer to protect his or her good name.
It Started With a Bad Cold
Medical services have been an integral part of review sites for as long as such sites have existed. In fact, tech entrepreneur Jeremy Stoppelman was inspired to start Yelp, the most notable of the review sites, in 2004 after he found himself having a hard time finding a good doctor to treat his cold.
The American Medical Association advises consumers to apply a healthy skepticism to online advice. ”Online opinions of physicians should be taken with a grain of salt, and should certainly not be a patient’s sole source of information when looking for a new physician,” the AMA says. “There are many good options for patients looking for a new physician. Choosing a physician is more complicated than choosing a good restaurant, and patients owe it to themselves to use the best available resources when making this important decision.”
A Case Western Review University law school paper examining the content of reviews found some good news for the medical profession, despite all of the angst over online criticism. “For all the wrath these sites have provoked, the result is surprising: studies show that doctor ratings are overwhelmingly positive,” wrote the paper’s author, Sean D. Lee. “For example, one study of thirty-three physician-rating websites found that 88 percent of reviews were positive, while 6 percent were negative, and 6 percent were neutral. Another study analyzing 15,000 reviews from 2004–2010 on the site DrScore.com found the average doctor rating was 9.3 out of 10, with an astonishing 70 percent of reviewed physicians receiving perfect scores.”
The Case Western researcher went on:
“Based on these findings, it seems strange that doctors and medical organizations have reacted so strongly to online reviews. “
Reviewers Don’t See Eye To Eye With Medical Specialists
What bothers some doctors is that the qualities prized by reviewers aren’t the same as those valued by medical professionals themselves. A study released this year by ConsumerMedical, a healthcare decision support, and concierge company, found there was a disconnect between good reviews and actual doctor quality. ConsumerMedical compiled a list of the top 10 doctors in five specialties in New York, Chicago, and Los Angeles on three popular patient review websites. Then it made its own doctor rankings using more than five billion data points to measure physician performance in areas such as patient readmission rates, surgical infection rates, the average length of stay and patient outcome. Only 2% of the physicians who showed up as top 10 ranked on the review sites appeared as top performers in the ConsumerMedical quality metrics. The online reviews focussed on matters like the physician’s bedside manner, punctuality, and availability. The convenience of the doctor’s location was also a significant factor for reviewers.
“This research confirms what we have long suspected,” said David Hines, CEO of ConsumerMedical. “Online patient reviews tend to reflect a patient’s care experiences, such as the physician’s bedside manner. While these attributes are important, they are simply not the main indicators of a physician’s overall quality; sadly you can have a very kind orthopedic surgeon whose patients have hospital readmission rates that are through the roof.”
“This absence of consumer-friendly tools that help the public understand that quality matters and that offer them meaningful quality information so they can choose a high-quality physician is very problematic.”
Yet more and more people rely on review sites for referrals. A survey by the Journal of the American Medical Association found that nearly 20% of patients found physicians web reviews very important and 40% somewhat important. Of those who used the web to search for physicians, 35% say they picked a doctor based on good ratings, while 27% reported avoiding those with bad ratings.
That said, the JAMA survey found that review ratings were less important to people seeking doctors than some other factors, such as whether the physicians accepted the patient’s health insurance, whether the office was conveniently located, and how many years of experience the practitioner had.
Even Doctors Who Despise Review Sites Read Them Religiously
Despite all their gripes about review sites, medical practitioners themselves can’t seem to resist reading them. A study by ZocDoc found that 85% of physicians read their own reviews and 36% glanced at those of competing physicians. And while most physicians judged the reviews fair, hostile or vindictive reviews can prove a big problem for physicians.
“If the complaint is about poor patient care, they can come back and say, ‘I provide all of my patients with good patient care’ and ‘I’ve been reviewed in other contexts and have good reviews,’ Deven McGraw, Deputy Director for Health Information Privacy at the HHS Office for Civil Rights (OCR), told ProPublica. But doctors aren’t supposed to get into specifics–even though some find it impossible to resist.
ProPublica compiled some striking cases of medical professionals whose responses to reviews went way over the line.
- One Washington state dentist turned the tables on a patient who blamed him for the loss of a molar: “Due to your clenching and grinding habit, this is not the first molar tooth you have lost due to a fractured root,” he wrote. “This tooth is no different.”
- In California, a chiropractor pushed back against a mother’s claims that he misdiagnosed her daughter with scoliosis: “You brought your daughter in for the exam in early March 2014,” he wrote. “The exam identified one or more of the signs I mentioned above for scoliosis. I absolutely recommended an x-ray to determine if this condition existed; this x-ray was at no additional cost to you.”
- And a California dentist scolded a patient who accused him of misdiagnosing her: “I looked very closely at your radiographs and it was obvious that you have cavities and gum disease that you’re other
ProPublica conducted a data search on Yelp and found dozens of cases of patients whose original complaint about service turned into a fight over patient privacy.
- “I posted a negative review” on Yelp, a client of a California dentist wrote in 2013. “After that, she posted a response with details that included my personal dental information. … I removed my review to protect my medical privacy.”
- The consumer complained to the authorities which enforce HIPAA. The office warned the dentist about posting personal information in response to Yelp reviews. It is currently investigating a New York dentist for divulging personal information about a patient who complained about her care, according to a letter reviewed by ProPublica.
- Angela Grijalva brought her then 12-year-old daughter to Maximize Chiropractic in Sacramento, Calif., a couple years ago for an exam. In a one-star review on Yelp, Grijalva alleged that chiropractor Tim Nicholl led her daughter to “believe she had scoliosis and urgently needed x-rays, which could be performed at her next appointment. … My daughter cried all night and had a tough time concentrating at school.”
- But it turned out her daughter did not have scoliosis, Grijalva wrote. She encouraged parents to stay away from the office.
- Nicholl replied on Yelp, acknowledging that Grijalva’s daughter was a patient (a disclosure that is not allowed under HIPAA) and discussing the procedures he performed on her and her condition, though he said he could not disclose specifics of the diagnosis “due to privacy and patient confidentiality.”
- “The next day you brought your daughter back in for a verbal review of the x-rays and I informed you that the x-rays had identified some issues, but the good news was that your daughter did not have scoliosis, great news!” he recounted. “I proceeded to adjust your daughter and the adjustment went very well, as did the entire appointment; you made no mention of a ‘misdiagnosis’ or any other concern.”
- In an interview, Grijalva said Nicholl’s response “violated my daughter and her privacy.”
- “I wouldn’t want another parent, another child to go through what my daughter went through: the panic, the stress, the fear,” she added.
- Nicholl declined a request for comment. “It just doesn’t seem like this is worth my time,” he said. His practice has mixed reviews on Yelp, but more positive than negative.
Fined For Republishing Positive Reviews.
Even positive online reviews can cause problems for medical professionals if they are republished without a patient’s permission. In 2016, the Health & Human Services Office for Civil Rights fined a California physical therapy practice $25,000 for posting patient testimonials on its website without patients’ permission. Complete P.T. Pool & Land Physical Therapy not only identified the patients by name, but used their photos, the complaint said.
“The HIPAA Privacy Rule gives individuals important controls over whether and how their protected health information is used and disclosed for marketing purposes,” said OCR Director Jocelyn Samuels in a statement posted on the OCR website. “With limited exceptions, the Rule requires an individual’s written authorization before a use or disclosure of his or her protected health information can be made for marketing.”
For doctors dealing with negative reviewers, there is always the option of taking their online critics to court. While the websites enjoy strong protections under internet law, reviewers potentially have more exposure in defamation cases.
Suing Reviewers Is No Panacea
Yet, the track record of suits against online reviewers isn’t all that encouraging for doctors. Eric Goldman, a law professor at Santa Clara University, found more than two dozen defamation lawsuits filed by doctors against patients over online reviews in a survey covering 2003 to 2015, The Wall Street Journal recently reported. Two cases went to trial, resulting in jury verdicts for the doctors, though one was reversed on appeal, Goldman found.
The Journal piece highlighted a defamation suit filed by an Ohio plastic surgeon that is slated to go to trial early next year. That in itself is unusual because suits over reviews seldom reach the trial stage. Most are settled quietly before a jury is ever selected. Some experts think the Ohio suit could be a bellwether for future cases involving online medical reviews, the WSJ reported.
- Dr. Bahman Guyuron, former chairman of the department of plastic surgery at Case Western Reserve University School of Medicine, sued Marisa User in 2015 over anonymous reviews she had posted on the cosmetic-surgery website RealSelf and other sites where patients swap information about doctors.
- The patient, who lives in Chicago, wrote on the site that she went to Dr. Guyuron for surgery to alleviate nasal congestion and for minor cosmetic work to her nose. After two procedures, the patient wrote in 2013, her breathing problems were worse and her nose was less attractive, leaving her with “confidence that has been destroyed.”
- Dr. Guyuron’s lawsuit says that the patient’s RealSelf review and her subsequent reviews on Yelp and RateMDs.com are rife with false information. The lawsuit seeks unspecified damages. the patient’s “relentless, vindictive and false accusations” compelled him to file the lawsuit, Dr. Guyuron said in an emailed statement to The Wall Street Journal.
- Legal experts who reviewed the case at the Journal’s request said it could become a bellwether in future disputes between doctors and patients over online reviews.
- “Given how few defamation cases go to trial—and cases involving doctors are even more rare—any trial would be an important signpost for future litigation,” said Sara Kropf, a lawyer in Washington, D.C., who provides legal advice to doctors regarding patient reviews.Dr. Guyuron’s lawsuit is scheduled to go to trial in February in the Cuyahoga County Court of Common Pleas.
Is It Defamatory To Call A Doctor “A Tool?”
Nevertheless, some doctors have found that suing the author of a negative review is a strategy that can backfire. Ask Minnesota neurologist David McKee. He sued Dennis Laurion for comments Laurion made about how McKee had treated his elderly father after a stroke.
Lauren’s review included the following passage in which he expressed discontent with Dr. McKee’s bedside manners.
“My father spent 2 days in ICU after a hemorrhagic stroke. He saw a speech therapist and a physical therapist for evaluation. About 10 minutes after my father transferred from ICU to a ward room, Dr. McKee walked into a family visit with my dad. He seemed upset that my father had been moved. Never having met my father or his family, Dr. McKee said, “When you weren’t in ICU, I had to spend time finding out if you transferred or died.” Lauren said family members “gaped” at the doctor for what they considered an inappropriate remarks.
After suing Laurion for libel, Dr. McKee testified that Laurion had misrepresented the lighthearted spirit of his remarks.
“I made a jocular comment to the effect of I had looked for [Kenneth Laurion] up in the intensive care unit and was glad to find that, when he wasn’t there, that he had been moved to a regular hospital bed, because you only go one of two ways when you leave the intensive care unit; you either have improved to the point where you’re someplace like this or you leave because you’ve died.”
In ruling for Laurion, Minnesota’s Supreme Court found that there wasn’t a substantial difference between the Dr. McKee’s account and Laurion’s. And because Laurion’s description of McKee’s remarks was essentially true, it couldn’t be libelous.
Another key point in the case centered on whether a derogatory description of Dr. McKee was libelous. Laurion wrote: “When I mentioned Dr. McKee’s name to a friend who is a nurse, she said, ‘Dr. McKee is a real tool!’ ”
Again, the Minnesota Supreme Court sided with Laurion. It ruled that “referring to someone as ‘a real tool’ falls into the category of pure opinion because the term ‘real tool’ cannot be reasonably interpreted as stating a fact and it cannot be proven true or false.”
Not only did Dr. McKee lose the suit, but he also suffered an additional blow in the form of increased attention to the case, a phenomenon known as the Streisand effect. That refers to the entertainer’s effort in 2003 to suppress the online dissemination of photos of her California mansion. Her effort badly boomeranged, unintentionally leading to greater attention being paid to the photos. In Dr. McKee’s case, his quirky court fight gained substantial attention from the press and many internet commentators.
Doctors Launch Petition Drive Against Review Sites
Some doctors are so frustrated about reviews that they launched a Change Org petition titled: Ÿelp: Remove Online Review of Doctors!”
The petition reads: “Doctors and other healthcare providers are reviewed on online review sites, similar to other businesses. We, however, are not like those other businesses. These online reviews are an open forum to the public written by patients, who are allowed to share their stories and photos explaining their experiences that they had with their doctor. Often these reviews are negative and accuse the doctors of complications or mismanagement from medical visits, treatments and procedures that they have had. Unlike other businesses, we, the doctors, are not allowed to respond, to defend our case or share any facts or photos to the public because of HIPAA and medical privacy laws. We, the doctors, find this extremely unfair and unjust. If patients are allowed to review us, then we should be able to defend the review and be able to state publicly our side of the story. ….. These reviews that are often one sided, impact our livelihood and medical practices. They also cause emotional distress to the doctors, who cannot explain their side of the story that is out in the public forum for others to read and believe. Also, many doctors fearing poor reviews will overprescribe and overtest just to “satisfy” patients. . . . We ask for immediate withdrawal of ALL doctors and providers, who are affected by HIPAA and medical privacy laws, from being reviewed on these online review sites. Until we can defend ourselves, a review should not be posted to which we cannot respond.
The petition has gotten more than 27,000 signatures.
That attitude is unrealistic and ultimately self-defeating, communications specialists say. The internet is not going away and neither are review sites. Doctors just need to learn how to live with them and try to use them to advantage.
Doctors Advised To Embrace Review Sites
“Doctors shouldn’t be scared of these sites,” Dr. Robert Dellavalle, of the University of Colorado Anschutz Medical Campus in Aurora, told Reuters. “As physicians, you need of be aware of what’s on these sites and use that feedback to improve your services.”
“I think for the most part patients love their doctors and most of the sites had high ratings,” said Dellavalle.
Instead of fearing reviews, some communications analysts say doctors need to embrace them. Specialists say the key is to raise the denominator —increasing the number of overall reviews so that a few bad reviews don’t skew the rating.
In the San Francisco Chronicle, Dr. Jeffrey Segal, a neurosurgeon and attorney who runs a company called eMerit to help doctors protect and promote their reputations, urges clients to encourage more patients to leave reviews. “The solution to pollution is dilution,” he said.. “The negative reviews may still be there, but (they) will be balanced by a representative sample of patient narratives so the practice will not be defined by two patients with a megaphone.”
The same Chronicle article talked about how healthcare professionals can “dilute” negative reviews by soliciting positive ones from satisfied patients.
- Psychologist Bob Field was puzzled, then anxious, when enrollments plummeted by a third at Quest Therapeutic Camps, his Danville and Oakland program for children with emotional and social issues.
- Eventually he realized the problem was negative reviews on Yelp, which he said were exaggerated or untrue and stemmed from families unhappy over billing. But his hands were tied by medical confidentiality laws from saying so on the online reviews site.
- “It really is a bind,” Field said. “I wanted to respond (online), but I couldn’t. I emailed Yelp and said, ‘This is libel. How can it be allowed?’ and got no response.”
- In Field’s case, eventually he figured out a strategy. He emailed other parents asking them to consider leaving their own reviews. More than a dozen responded, boosting the camp’s rating from one star to 4.5 stars. He replied online to the most negative review simply stating that Quest’s parent surveys found a 94 percent satisfaction rate. He also tried contacting the negative reviewers privately to address their issues, although that didn’t result in any changes.”
Vanguard Communications, a firm that works with healthcare professionals on public relations, recently laid out sound precepts for dealing with patient reviews. Most are simple common sense–don’t create phony, or sock puppet, positive reviews and do solicit feedback from patients. The firm had some specific pointers for how to get satisfied patients to express their views:
Request – don’t pressure – happy patients to rate their experiences
- At Vanguard we’ve seen instances of healthcare groups offering gift cards or other rewards for posting favorable comments online. Bad idea.
- Pressuring or incentivizing patients to comment publicly doesn’t pass the smell test. Such an approach also jeopardizes the delicate physician-patient relationship.
- The best approach is simply to ask your most contented patients – the ones who’ve already expressed their thanks for successful treatment – to say something on one of the rank-your-doctor websites.
- Not all will comply. But if you ask enough, you’ll get an adequate response. Many physicians do this efficiently simply by responding to grateful patient letters or calls with a tactful request for an online review.
- It doesn’t take many responses from these patients to tip the balance and dramatically improve online ratings.
If you’re a healthcare professional and need help navigating the shoals of online review sites, you owe it to yourself and your practice to get knowledgeable and experienced help. The internet attorneys at Minc Law have ample experience dealing with medical reviews. We can show you how to avoid legal pitfalls in answering reviews. And if a negative reviewer is crossing the line from offering an opinion to slandering you or your practice, we can help you defend your rights. Call (216) 373-7706 today to find out more information, or schedule a free consultation.