Trashed on the Internet: What Should You Do?

Gail Garfinkel Weiss, BBA, MSW

Disclosures

January 04, 2010

In This Article

Find Out What's Being Posted About You

"I encourage every physician to routinely and aggressively monitor their Web presence. Not just for proprietary ranking systems such as HealthGrades but for blog postings, patient 'complaint boards,' and government sites such as State Department of Health physician profiles," says Michael J. Schoppmann, a health law attorney with Kern, Augustine Conroy & Schoppmann in New York and New Jersey.

"This should be done by a staff member knowledgeable as to the Internet and should include search engine investigations using the physician's name and the name of the practice," says Schoppmann. "Any threat, or implied threat to the physician, physician's staff, or physician's family, should be taken seriously and reported to the appropriate law enforcement authorities. And any comments that cross the line of personal expression and defame the physician should be acted upon.

"Additionally, all items located should be saved and printed for future reference, as they may change or be removed at a later point and thereby difficult or impossible to retrieve," he says.

It's a matter of always being in charge of your own name, says Domingo J. Rivera, an attorney in Glen Allen, Virginia. The Internet has several tools to help you do that. Google Alerts (www.google.com/alerts), for one, will automatically notify you when Internet posts contain certain search terms -- such as your name or the name of your practice. Some rating sites, such as Vitals.com, offer free alerts when physicians are rated on that site; other sites charge for this service.

Challenge a Negative Review

Some negative comments never make it onto a ratings Website, and others will be removed if you can convince a site manager to do that.

"We read all the ratings when they're first submitted, usually within 24 hours. If we see something that that's blatantly avaricious or irrelevant -- a post indicating that a doctor is having an affair with his secretary, for instance -- we delete it," says RateMDs' John Swapceinski. "Doctors who see ratings that they don't agree with can place a red flag next to the rating and that will prompt us to take another look. If we still think it's OK, we'll put it back up."

In any event, Swapceinski continues, doctors can create a free account on the site and post their feedback to ratings.

What about HIPAA constraints? You can certainly respond to a posted comment generically, says Schoppmann. So if a patient writes, "I waited 2 hours to be seen and instead of being seen by the doctor I was seen by a PA," the physician might respond, "No one waits longer than 25 minutes in my office and we don't use PAs."

Schoppmann warns, however, against releasing protected health information, which HIPAA does cover and includes identifiable data about an individual's physical or mental health. Also, be careful not to exceed the disclosure level of the patient. "If the patient uses initials you can't say 'This is Mary Smith of Malibu, California.' If the patient describes a bad surgery, I would caution physicians not to post pictures to back up their claims that the surgery was a success," Schoppmann notes.

Before resorting to an online response, contact the owners of the site to obtain the site's rules or policies. "Many sites indicate that they will not allow personal attacks, yet the reviews contain exactly such content," says Schoppmann.

"Bringing the rule violation to the attention of the site's owners might result in the negative comments being removed. If that doesn't happen, a carefully worded, professional response sets a good juxtaposition against the hysterical tone of a self-serving review," he says.

When to Go to Court

"In most cases, patients who write on these Websites are expressing an opinion and, as such, there is little one can do to stop it," says internist Eric E. Shore, a health law attorney with Kane & Shore in Philadelphia. If, on the other hand, the patient states an untruth, or a fact that was in his or her possession under a confidential agreement, the physician may be able to take legal action to remove the comment, and even sue the patient who wrote it for defamation.

"Defamation has a formal legal definition," Shore continues. "Mere opinion does not rise to the level of libel or slander. Both require a false statement of fact that damages reputation. In the eyes of the law, opinion is fair game. Also, while one bad comment is not likely to have much effect on physicians or their practices, a running argument on the Web just might. Sometimes just letting things go is the best answer."

Eugene Burns, a family physician in LaPlace, Louisiana, agrees. "The Internet makes it very easy for anonymous critics to attack people," he says. "I think that unless the site is showing comments alluding to criminal or highly unethical behavior, it is probably best to simply ignore the comments. You cannot force people to like you, and giving these potential sites Web 'hits' may make them more popular and thus elicit advertising that could compound their visibility and annoyance."

The "turn the other cheek" strategy doesn't work, however, when online attacks are persistent, negative, and being noticed by patients and colleagues. According to Schoppmann, "If a patient makes an isolated inappropriate comment on some obscure message board, a lawsuit isn't warranted.

"But you have to hit back if you have a patient whose post is defamatory, focused, concerted, successful, and is beginning to have an appreciable impact on the practice, meaning that patients are noticing or even canceling procedures or appointments. The comments might be anonymous, but it has been my experience that between the staff and the doctor we can identify the poster very quickly."

Indeed, the poster, not the Website, will be the likely target of a lawsuit resulting from Internet comments. Domingo Rivera points to section 230 of the Communications Decency Act of 1996, which specifies that Internet service providers are shielded from lawsuits involving defamation because they are, as the term suggests, merely providing a service; they're not making the offensive statements. As a result, getting the posts removed or putting an end to a barrage of negative comments are often the best outcomes that can be expected in cases like these. Patients rarely have deep enough pockets to pay financial damages.

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