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You’ve Been Yelped: What You Should Know about Responding to Negative Online Reviews

The online review sites Healthgrades, Yelp, and Vitals have become a popular way for patients to research and choose an ophthalmologist. Like it or not, these (and other review) sites have virtually taken the place of the telephone book as the primary vehicle for people finding you. They also can pose a serious public relations risk for your practice since anyone can post practically anything they want – good or bad – about you in seconds, and often anonymously.

In recent months, OMIC policyholders have reported negative comments posted by both patients and disgruntled employees. Complaints have ranged from personal attacks on physicians and staff to angry and snide comments from patients who were refused drug refills or denied approval for false claims of workers compensation or disability benefits. In one instance, a practice fired an employee for fraudulent billing only to have the employee imply online that the practice “allowed” her actions and encouraged it before firing her. Some involved blunt assessments of perceived (poor) service or misunderstandings about the practice’s policies or procedures and the most common complaints are rude staff, poor bedside manner, improper billing, and long wait times prior to visit. Sometimes poor reviews, if there is merit to their claims, are ultimately good for a practice when used as constructive feedback in areas that need improvement. Inflammatory statements, however, will undoubtably also turn off potential patients.

There are conflicting opinions on how to handle the comments themselves, but it would almost certainly be a “lose” proposition to respond directly online discussing the specific negative comment (or initiating a lawsuit). It will only make the issue much more likely to come up prominently in future searches of the doctor’s name or practice and many potential patients would be turned off just as much or more by the suit and choose another practice. Online facts become subject to the eye of the beholder. Remember it could be a HIPAA Privacy violation if details of a patient encounter were discussed in an open venue.

Read the following for more information:

Q&A

Q: Can I buy insurance to protect myself from negative online comments?

A: Insurance generally covers your defense of a suit as opposed to initiation of one. If you want to initiate legal action against a patient or another practice for defamation, you most likely will have to sue at your own expense unless you’ve purchased some kind of product or service that would cover such expenses.

NOTE: If your practice is accused of slander or defamation, then a Business Owners Policy (BOP) may cover your defense, depending on the circumstances, and you should contact your agent or carrier. However this is usually a competing practice that would bring such a claim (as opposed to a patient) and there may be limitations under your policy terms and conditions, therefore it is advised that you read your policy booklet to see what coverage is in fact provided.

Q: Is there a contract that I can have my patients sign that would restrict them from writing a negative review about me or my practice?

A: Probably not. The First Amendment protects a patient’s right to post negative comments about you online. You must prove the comments are a violation of some law, rule, policy, or statute in order to prevail. Many legal experts believe that attempts to limit patient’s legal right to post negative online reviews are dubious and are unlikely to prevail if challenged in court.

UPDATE: It was reported that a North Carolina company called Medical Justice tried to use copyright infringement law to limit patient’s rights to post negative reviews by selling legal “templates” to physicians that they were advised to have their patients sign. Under the agreement the patient would forfeit their review “copyright” allowing the physician to then monitor review sites and demand that bad reviews be removed as a violation of copyright. The legality of these contracts was challenged by a group called Public Citizen and in response to the lawsuit the group filed in December 2011, Medical Justice announced they would immediately discontinue recommending that medical professionals have patients sign such forms.

Q: What do “reputation management” companies offer to protect my practice from negative online comments?

A: Generally, these types of companies will “package” the following types of services:

Monitor search engines, review sites, and social networks for sensitive information or negative comments that mention you or your practice.
Attempt to increase positive search engine results (also referred to as SEO or Search Engine Optimization) by giving you tips on how to move negative reviews “lower” on the list when people search for your practice online.
Suggest ways to claim online presence such as setting up online social media pages and blogging about your practice.

OMIC’s policy is to refrain from commenting on products offered by vendors or third parties. However it may be noted that most of the services provided by these companies can also be performed by you or your practice. Whether or not the cost of these services (which can be several thousand dollars per year) is justified is really in the eye of the beholder.

Tips for “Do it Yourself” Online Reputation Management:

Claim Your Online Spaces.Create social networking pages for you and your practice on major sites such as Facebook, Twitter, LinkedIn, and other communities. This alone will increase your positive search results as they will often appear high during web searches. Your practice should also claim your names and spaces on major review sites if you haven’t done so already so they cannot be “commandeered” by a disgruntled person or practice.
Register Your Name.Create registered domains for your name and/or practice for whatever is available: For instance .com, .net, .info, etc. Search engines tend to put registered domains higher on search lists.
Blog about Your Practice.Even if you don’t have time to do original content, blog about basic things like upcoming practice events, seminars, personal news, procedures offered, or marketing initiatives. Whether people read the blog or not, it will help with your SEO by pushing negative comments lower on search lists.
Download Tracking Apps.There are many inexpensive apps you can download on your computer or PDA that will notify you if your name or practice are mentioned on social media or review sites.
Offer Patient Surveys.Encourage your patients to complete surveys as part of their ophthalmic visit. Ask for permission to post their review or direct them to the online space to give a review. Most of your patients are probably happy and so the positive reviews will far outweigh any average or poor ones. Create your own surveys and incorporate into your patient visit procedures or investigate MedRounds.org below. (Practices should always have permission before publicizing any comments or testimonials from a patient)
Google Yourself.Attempt to identify sensitive or problematic online information and take steps to delete or respond to it.
Establish a Social Media Policy.See the OMIC article Social Networking Policy for Your Ophthalmic Practice for tips on securing and protecting your practice reputation and sensitive information from disgruntled employees

Go here for more advice: http://mashable.com/2010/09/30/improve-search-rank-for-your-name/

If you have discovered a negative online comment about you or your practice, here are suggested remedies you may choose to pursue.

Determine whether the post or comment is from a real patient that was treated by you.

Not all posts are from your patients. In some cases a review, comment, or rating may actually be intentionally untrue, left by a disgruntled patient, competitor, or employee. When the negative comment is posted, search engines like Google, Yahoo, or Bing may bring up the false statement every time someone searches your name for years to come.

Before responding to a negative review online, try to determine the following (if possible):

Mistaken Identity. Has the poster incorrectly identified you when actually referring to a different physician with similar name?

Fraud. Is the post an attempt by a competitor to attract new patients by casting your practice in a negative light?

Disgruntled Employee. Could this be the act of a current or former employee who is upset and wishes to damage the practice?

Friend or Relative of Patient. Is the post actually written by someone without any first-hand knowledge of the treatment?

What you can do:

Check medical records, appointment logs, billing ledgers, and office notes. If details are offered in the post it may be obvious whether or not was your patient. Discuss with staff members to determine whether it could be a legitimate post.

If after researching the matter you believe the post is not from an actual patient, contact your personal attorney to determine the best way to proceed. You will most likely be advised to do the following:

Contact the Poster.If the poster can be identified, try contacting them to respectfully request that they remove the comment. Remain civil and respectful and refrain from threats or provocative statements. If the poster refuses to comply with your request, ask your attorney to send a strongly worded letter to the poster asking that the comment be removed and warning of potential litigation.
Contact the Website. If the poster is not identified (or not cooperative), contact the website. DO NOT join the site if you are not already a member. Many review websites have policies against defamation and will examine the comments to make sure that they do not violate the sites terms and conditions. Be respectful and cooperative with the site, and be ready to justify why you believe the post is fraudulent and/or inaccurate. If you join the site, you may agree to the terms and conditions of the site which could limit or waive your rights to legally challenge defamatory comments in the future.
Seek a Subpoena.If the website provides no assistance in removing the comment, speak with your attorney about whether to seek a subpoena ordering the Internet service provider to give identification data. During a defamation investigation, you may be granted a subpoena to remove the comments in question. Identification information could be an Email address, name, or address of the poster.
File a Lawsuit. If all above attempts prove unsuccessful, you may decide to request a court order or to file a lawsuit. In order to be successful in having a court order the removal of online comments, you must be able to provide evidence that they most likely are inaccurate and are causing irreparable harm to your practice. This will most likely require that you proceed with a lawsuit or formal legal complaint first, which would then result in a court order for the removal of the comments.

If you are reasonably sure that the post is from an actual patient and refer to legitimate concerns or opinions, whether you agree with the views expressed in the post or not, you may want to try contacting the patient directly to discuss his or her concerns and to request that the comment be removed. You may find that there is a reasonable solution to the patient’s frustrations.

If the patient is uncooperative or if you feel it would be unwise to contact the patient directly, you may follow the steps described above to get the comments taken down or pursue legal remedies.

Observations:

Freedom of speech protections allow patients to say or write things about you as long as what they say does not cross a line of being defaming, slanderous, threatening, obscene, or in some way a violation of the terms and conditions of the site on which it is posted. Personal opinions and perceptions are protected and do not necessarily have to be accurate.

It is also often difficult to win defamation cases (i.e what you might consider “outrageous” or “slanderous” may not meet a legal definition for these terms). Because the First Amendment creates this high legal bar for legal defamation, it’s simply often not worth the effort to litigate such things, which can last for years and generate additional “bad publicity.” Therefore it is advised that you speak with counsel in order to determine whether the comments are simply strong opinions, which are most likely legally protected speech, or actual defamation that should be litigated.

The best way to handle these situations is probably to simply rise above it and encourage your other patients to write comments about their experiences. You should never ask patients to submit “rebuttals” to a negative review, but rather simply ask patients to post (or authorize you to post) honest comments about their experience. Most of the your patients are probably happy and if there is a consistent process for encouraging feedback the good reviews will eventually far outweigh any bad ones.

Other things to consider:

If you believe the comments could signal that a patient is considering additional actions such as a medical malpractice or fraudulent billing complaint against you contact your malpractice insurance carrier to report the incident.
If you believe that it would be in your best interest to terminate the physician-patient relationship, make sure to follow OMIC’s Risk Management Recommendations to avoid allegations of patient abandonment.
Do not contact an angry patient without consulting with an attorney first.

NOTE: The above article is not intended to constitute legal advice. You should always consult with an attorney prior to any actions you take regarding this legal matter.

http://www.ama-assn.org/amednews/2011/12/12/prsa1212.htm

http://www.kevinmd.com/blog/2010/01/poll-doctors-patients-give-negative-online-review.html

http://doctoredreviews.com/

http://techland.time.com/2011/04/14/how-do-doctors-avoid-bad-online-reviews-legally/

http://abcnews.go.com/blogs/health/2011/12/01/dentist-threatens-to-sue-patient-for-negative-yelp-review/

http://www.kevinmd.com/blog/2011/12/bury-bad-doctor-reviews-strong-physician-social-media-presence.html

http://www.thehealthlawfirm.com/resources/health-law-articles-and-documents/Online-Reviews-for-Doctors.html

http://www.rosemontmedia.com/industry-news/is-the-yelp-review-filter-hurting-doctors-reputation

Resources:

http://www.medrounds.org/main/ (Disclosure: OMIC Board Member Dr. Andrew Doan has financial interest)

Terminating the Physician-Patient Relationship

Social Networking Policy for Your Ophthalmic Practice