Negative online review of MD? Keep legal risks front of mind

Patient postings coming up ‘more and more’ in med/mal suits

Did a dissatisfied patient post a negative review online about you or your practice? “We often hear from physicians who really, really want to tell their side of the story,” says Brandy A. Boone, JD, a senior risk management consultant at ProAssurance Companies in Birmingham, AL.

Physicians should consult with an attorney before responding to a negative post, cautions Bruce D. Armon, JD, an attorney at Saul Ewing in Philadelphia. “Make sure there is an awareness of long-term implications. Pause and reflect before sending any response,” Armon says. “You don’t want to talk about the treating circumstances or any complications in a public setting. There is nothing to be gained from that.”

Responding online could lead to litigation alleging invasion of privacy or unauthorized disclosure of protected health information under the Health Insurance Portability and Accountability Act (HIPAA). “There are no provisions in HIPAA that waive privacy regulations when a patient posts an online review,” Boone explains.

Therefore, referencing a patient’s health information in response to an online review could be viewed as an unauthorized disclosure, she says.

John W. Miller II, a malpractice insurance broker and principal of Sterling Risk Advisors in Marietta, GA, says, “A response can turn a well-intentioned statement to defend one’s professional reputation into an actionable item for the patient, not to mention the fines and penalties that a physician could then face for HIPAA violations stemming from the response.” A physician’s response online to a negative posting can be taken out of context and damage the physician’s defense, adds Miller. “Jurors expect their own physicians to be consummate professionals,” says Miller. “For many, responding to negative postings is perceived to be beneath a physician who they view as a professional, especially when the physician’s response is either not complete or casual.”

Physicians might want to address underlying reasons for a patient’s bad outcome, such as extenuating circumstances, other providers’ negligence, or patient non-compliance, says Miller, “but bifurcating causation in a response to a posting is difficult at best.”

Boone says physicians should consider these approaches prior to responding to an online review:

• Contact the patient directly to address any of the patient’s complaints, if there is no ongoing litigation regarding the subject of a negative post.

“If there is ongoing litigation, we would not advise that, because both would be parties to the litigation and represented by counsel,” says Boone.

There is no guarantee that a patient who posts a negative review also will sue, she says. There also is no guarantee that contacting the patient and trying to discuss the issue would not provoke the patient into considering litigation when he might not have been considering it previously, adds Boone. “Physicians who elect to contact patients posting negative reviews should be reasonable in any discussion, regardless of how strongly they disagree with the patients’ allegations,” she says.

• Document any conversations with the patient.

If a lawsuit is filed, patients will be able to testify regarding the substance of the conversation, and the physician will also get the opportunity to testify about what was said, Boone explains.

• Contact the organization that sponsors the website where the review is posted.

“Find out if there are options regarding retraction or issuing a generic denial of any allegations,” says Boone.

Negative online reviews written by patients are coming up “more and more often in litigation,” according to Miller.

“The first thing many defense attorneys do with every case is to Google the defendant, the plaintiff, and opposing counsel,” he says.

Plaintiff attorneys can take advantage of negative online reviews in several ways, Armon says. “If there are multiple criticisms, fair or unfair, that might affect their strategy or decision to move forward,” he says. “Just because something is posted doesn’t make it accurate, but it could at least make them do additional digging.” If they see another patient complained, the attorney could do a public record search to find out if any case was filed between that individual and the physician.

Review might be admissable

While in most cases, a patient’s negative online review wouldn’t be admissible in court, there might be exceptions depending on the specific facts of the case, says Boone. “But if the online review was posted by the plaintiff, that person can testify in court to the same information,” she says. “It could possibly be used by the defense side to impeach the patient’s testimony if they differ.”

It would be more difficult for the plaintiff in a lawsuit to use negative reviews by another patient since in most cases, this information wouldn’t be considered relevant, says Boone.

Miller says that online reviews of providers in the public realm could be used to substantiate a pattern of negligent care, especially if the reviews are “on point” relative to the facts and allegations in the filed action. “Equally often, however, negative reviews can hurt the plaintiff’s case, especially when the plaintiff might have exaggerated their injury or condition on a social network site,” says Miller. Such statements might be proven to be an exaggeration or simply false during discovery or at trial.

“The defense always indicates that credibility of the party to the suit is a huge factor when a jury convenes,” says Miller. “The less credible the plaintiff, the better the physician’s chance of prevailing at trial.”

You can prevent negative reviews

Give your patients the opportunity to have their voices heard

Instead of learning about a patient’s dissatisfaction from reading a negative online review, physicians should take steps to prevent the patient from posting such a review in the first place, urges Molly Farrell, vice president of operations for MGIS Underwriting Managers, Inc., in Salt Lake City, UT.

“It’s all about how you communicate with a patient and giving them an option to give you that information first,” says Farrell. “Patients post on sites because they don’t feel like they can communicate directly with the physician.”

Physicians can survey patients via email to ask the question, “What are three ways you think I can improve my service?” and give patients an option to be called back, for example. “And if the patient gives their information, for crying out loud, please call them back,” says Farrell.

Various studies over the years have shown a significant link between litigation and a breakdown in communication, according to Elke Kirsten-Brauer, chief underwriting officer for MGIS.1-6

If a negative review is posted, an office manager might contact the patient to say, “We understand you had a bad experience and we’d like to see what we could have done better,” says Kirsten-Brauer. “Many patients would never speak up directly to the physician,” she adds. The goal is to give the patient a chance to get a complaint resolved before it goes any further, says Farrell. “Negative reviews are available to everyone to see — including your underwriter, who might take a look and say, ‘Here’s a bad communicator,’” she adds.

Patients generally are much more critical online than they would be in person, notes Farrell. “The biggest thing you can do is address the situation before it ever becomes a negative review or malpractice suit,” she says.

Farrell recently spoke with the head of a provider of medical liability insurance who said that if he could do one thing to reduce risks, he’d send a shirt to every physician stating, “Just Be Nice.” If a patient suggests an improvement and the physician implements it, he or she is much less likely to file a lawsuit, adds Farrell. “Ask for feedback so you can be better,” she says. “Then, take the input and actually do something with it.”

References

1. Roter D. The patient-physician relationship and its implications for malpractice litigation. J Health Care Law Policy 2006; 9:304-314.

2. Hickson G, Federspiel C, Bost P, et al. JAMA 2002; 287(22):2,951-2,957

3. Beckman H, Markakis K, Suchman A, et al. Arch Intern Med 1994; 154(12):1,365-1,370.

4. Moore P, Adler N, Robertson P. West J Med. 2000; 173(4):244-250.

5. Levinson W, Roter D, Mullooly J, Dull V, Frankel R. JAMA 1997; 277(7):553-559.

6. Melonas J, McNary A. Neurology 2010; 75(18):Supplement 1 S45-S51.