Legal Action Possible, But Not Always Advisable, for Bad Reviews of ED Visit
Nothing can stop patients from posting terrible reviews about ED visits online. When it happens, some providers want to take legal action. Kenneth Dort, JD, fields such calls regularly. “People often want to sue the person who posted something negative. The question is: Even if it’s something they could do, is it something they should do?” says Dort, a partner at Faegre Drinker Biddle & Reath in Chicago.
There are no legal grounds to sue someone for a subjective comment such as “The ED nurse was totally incompetent.”
“It is a hotheaded, opinionated statement. But unless it is truly, objectively disprovable, it’s probably better to just let it go,” Dort suggests.
Threatening legal action could complicate the situation. Usually, it is hard to prove the statement is untrue. Even straightforward accusations like “The EP misdiagnosed me with indigestion when it was actually a heart attack” are “massively, factually complicated,” Dort notes.
If the provider ignores the criticism, it will be forgotten quickly. “Some people might see the post and ask the EP about it. That’s going to last for maybe a couple weeks,” Dort observes. “Most of the things that appear on these sites blow up at first, then fizzle out quickly.”
To prove the statement is false, the provider would have to file a lawsuit. “That will last months, if not years, as discovery drags on,” Dort warns. “It probably isn’t a best use of the doctor’s time and the hospital’s resources.”
Even learning the identity of the poster might require the EP to obtain a court order to force the website or social media platform to uncover their identify. The sites will fight back legally against this, likely successfully. “Contacting the platform to demand they’ll pull it down or edit it is not going to work. They won’t be forced to,” Dort says.
Since the EP is alleging the statement was false, the person who made the statement must prove the statement was true to prevail. “If the EP files a libel lawsuit, that could very well be initiating a counterclaim for malpractice,” Dort says.
A post such as “The ED nurse was impaired and gave me the wrong medication” might be provably false. In that case, Dort says the hospital’s risk management department might consider responding to the post (or sending a letter) stating, “We saw your post. Please be advised we investigated this and the statement is objectively false.”
In most cases, the best course of action for the maligned provider is to resist the urge to respond. “Taking defensive action could be just digging the hole deeper,” Dort says.
There also is the possibility the bad review of ED care is valid. “Often, the negative reviews are revealing. It’s a form of consumer feedback that the ED providers might not be used to getting, but might really need to hear,” says Eric Goldman, JD, associate dean of research and professor at Santa Clara (CA) University School of Law.
When an EP learns of a negative review, he or she might consider if there is any validity. “If so, a lawsuit is irrelevant, because the patient is providing valuable feedback,” Goldman says.
In his experience, plaintiffs often regret these suits and usually are unsatisfied with the results. Instead, the provider might publicly acknowledge the commenter’s concerns while complying with patient privacy regulations.
The EP could post a statement saying “the feedback is being taken seriously,” or explain the policies involved: “We attempt to check all patients in within X minutes” or “We keep a radiologist on staff 24/7.”
“Those kinds of operational policies can be disclosed without addressing the specifics of an allegation in a privacy-disrespectful way,” Goldman says. Some EPs insist it is improper for a layperson to critique their expertise; after all, patients did not go to medical school and never practiced medicine. “But patients know a lot. Arrogance will blind you to all of the feedback consumers are giving,” Goldman cautions.
If EPs are going to publicly respond to a negative review, it is best to “keep it as generic as possible,” advises Andrew C. Stebbins, JD. “Talk more about your practice and how you handle issues more than responding to the specific patient.”
There is always the danger that the EP will respond in a way that identifies the patient. This could be a violation of patient privacy regulations, regardless of how many details the patient already publicly posted. “That’s an easy win for somebody who’s trying to attack you. Even if they identify themselves, it’s better not to respond in a way that is identifiable,” says Stebbins, managing attorney at Orange Village, OH-based Minc, which specializes in defamation and online reputation.
The patient could accuse the EP of a HIPAA violation. “It is almost always a bad idea to try and refute the allegations in a review through the reply process,” Stebbins says. Generally, any response that references, or even acknowledges, the treatment a patient received is problematic and can run afoul of HIPAA.
Assuming statements are provably false, the EP can move forward with a defamation action, even against an anonymous reviewer. “Examples of provably false statements include allegations of abandonment, complications that did not occur, or other claims of malpractice that can be disproven with a simple review of the patient’s records,” Stebbins says.
Before filing a claim, consider how much damage has resulted from the bad review. What does the EP want to remedy in terms of compensation or restoring reputation? Many EPs just want the review taken down and make sure it is not posted anywhere else.
Another valid reason for pursuing legal action: To put a harassing, vindictive patient on notice that the EP will not tolerate false accusations. “Often, people who are willing to do this don’t just stop at online reviews. Some take it further and start making false reports to medical boards or calling employers,” Stebbins says.
A strongly worded letter from an attorney says the EP is not going to allow it. Providers must put emotions aside and make hard calculations on what they are looking to achieve — and how much they are willing to spend. “We are very careful before we bring a defamation action to make sure these are provably false claims,” Stebbins says. “But it is doable.”
Providers must put emotions aside and make hard calculations on what they are looking to achieve — and how much they are willing to spend.
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