FEBRUARY 18, 2013
“Doctor Spends Thousands Fighting Negative Reviews In Court – And Loses”
Scott Gibson, Health Care Tech Review
Even though doctors don’t give much thought to online reviews from patients, they may come across some comments that are so out of line they may choose to take action. However, their rights under the law may be limited, as this court case shows.
There are many websites that allow patients to rate doctors and healthcare organizations. Most doctors say their ratings have little or no effect on their practice, according to survey conducted by the American College of Physician Executives.
The majority (55%) of doctors believe only a quarter of patients even check those sites anyway, and just 21% think more than half of patients do so. However, that hasn’t stopped doctors from browsing those sites to see what their own ratings look like — 69% of physicians have admitted to doing so.
And occasionally, they may come across a comment that’s particularly negative, unfair or untruthful, as Dr. David McKee of Minnesota did recently before deciding to sue the person who wrote the comments for defamation.
McKee’s suit stemmed from 11 comments posted by a patient’s son on several doctor rating websites. The comments included:
- Quotes from statements McKee had made about looking for the patient and trying to find out if he had “transferred or died,” and a statement about how a large percentage of people with the patient’s condition die;
- Accusations that McKee exited the room without talking to the patient’s family;
- A quote from a nurse describing McKee as a “real tool.”
McKee sued, arguing that the claims were either untrue and; when they were true, his comments were made in a jocular manner and misinterpreted by the family. He claimed the comments could harm his reputation and his business. However, the Supreme Court of Minnesota threw out the case, deciding that the comments were close enough to being too true to offer protection from liability for defamation.
This case presents a lesson for other healthcare professionals: In most cases, there are better ways to respond to negative online comments than going to court. After the four-year court battle, McKee estimates he spent about two years’ worth of income on legal fees (sic).
Experts these are better ways to deal with negative comments:
- Don’t respond publicly – Some review sites allow doctors to post a response to a user’s complaint. But most experts recommend doctors resist the urge to do so. It’ll only elicit more negative statements, and according to most doctors, a negative review won’t have much impact anyway.
- If the comment is highly untrue or unfair, have it removed. Review websites typically have policies to prevent liability for defamation suits; that means if a user posts something that’s untrue about a doctor, the site will most often comply with requests to take the review down.
- Conduct patient surveys – Most doctors agree internal surveys are more useful for gathering data about what the organization is and isn’t doing correctly. Polling patients allows the organization to get the specific information it needs to improve operations.
TRIBUNE READER: Doctor David McKee, a neurologist with Northland Neurology and Myology, practicing at St. Luke’s Hospital, told the Duluth News Tribune he was disappointed and frustrated. “We need to change the law so someone with a personal vendetta who is going to use the Internet to make defamatory statements can be held responsible,” he said.
The Star Tribune said it’s a frustrating end for McKee, 51, who said he’s spent at least $50,000 in legal fees and another $11,000 to clear his name online after the story went viral, resulting in hundreds more negative postings about him — likely from people who never met him. He hasn’t ruled out a second lawsuit stemming from those posts.
“The financial costs are significant, but money is money and five years from now I won’t notice the money I spent on this,” he said. “It’s been the harm to my reputation through the repeated publicity and the stress.”
McKee’s lawyer, Marshall Tanick, told the Associated Press that he and McKee plan no further appeals and that they were disappointed with the ruling. “We feel it gives individuals undue license to make disparaging and derogatory statements about these people, particularly doctors and other licensed professionals, on the Internet without much recourse,” Tanick said.
In reply to an e-patients.net article “Minnesota Supreme Court Sides With Patient On Social Media Defamation Suit,” Attorney Marilyn Mann said, “I think McKee’s lawyer is incorrect. The case turned on standard principles of defamation law and doesn’t really break new ground.”
Jane Kirtley, a professor of media ethics and law at the University of Minnesota School of Journalism, told the Star Tribune that the ruling stems from “an elementary principle of libel law.” She said that this isn’t a blank check for people to make false factual statements. She said, rather, that it’s “an endorsement that statements of opinion are protected under the First Amendment.”
According to the Duluth News Tribune, Minnesota Newspaper Association attorney Mark Anfinson, who watched the oral arguments before the Supreme Court in September, said that the justices made the right decision. Anfinson also told the News Tribune, “What this case really exemplifies is not so much legal precepts in libel law, but the impact of the Internet on the ability to publish unflattering comments about people.”
The Mankato Free Press said in February 2013: “It’s puzzling why McKee’s defamation lawsuit — filed nearly four years ago — was still in court. It’s long been established that people may spout any opinion they want without fear of being sued . . . It’s unsettling that the Appeals Court earlier ruled to allow the suit to continue.”
In his Technology & Marketing Law Blog, Eric Goldman said on February 4, 2013, “I’ve been tracking doctor v. patient lawsuits for online reviews. . . doctors usually lose or voluntarily drop these lawsuits. Indeed, with surprising
frequency, doctors end the lawsuit by writing a check to the defendant for the defendant’s attorneys’ fees where the state has a robust anti-SLAPP law. Doctors and other healthcare professionals thinking of suing over online
reviews, take note: you’re likely to lose in court, so legal proceedings should be an absolute last-resort option–and even then, they might not be worth pursuing.”
Dan Hinmon, the principal of Hive Strategies, wrote for Health Care Communication, on March 21, 2013, “According to the Star Tribune, McKee is now ticked off at the people who posted hundreds more negative comments about him after the story went viral. Incredulously, the story reports that McKee ‘hasn’t ruled out a second lawsuit stemming from these posts.’ Yes, you read that right. After spending ‘at least $50,000 in legal fees and another $11,000 to clear his name online after the story went viral,’ McKee is considering suing the rest of the people who, exercising their right of protected speech, chimed in. I’m speechless.”