Health Matrix: “I Hate My Doctor”: Reputation, Defamation, and Physician-Review Websites

“I Hate My Doctor”: Reputation, Defamation, and Physician-Review Websites 

Sean D. Lee 

Health Matrix, The Journal Of Law – Medicine

Volume 23, Issue 2 

Case Western Reserve University School Of Law 

2013

Health care quality reporting is not a new phenomenon, and information about patient experiences and satisfaction is available in many forms. For example, as part of its “Hospital Compare” initiative, the federal government publishes hospital patient experience ratings based on criteria like “nurses’ and physicians’ communication skills, pain control, cleanliness, and whether the patient would recommend the hospital to friends and family.” Some state governments, nonprofit organizations, and health insurers publish similar reports of patient satisfaction based on a variety of subjective and objective criteria. According to one commentator, this trend toward quality reporting has increased due to factors like greater attention to health care quality concerns and cheaper, more widespread access to technology.

Consumers are increasingly going online to inform their health care decisions. As of 2009, more than forty websites like Angie’s List, Yelp, and RateMDs offer reviews of medical care providers. Even Zagat, best known for its travel and leisure guides, entered the business of physician reviews in 2008. In addition to providing basic information about a provider’s licensure, office locations, and disciplinary record, these physician-review websites allow patients to rate their experiences—often anonymously—on criteria like the physician’s punctuality, knowledge, bedside manner, and even staff friendliness. Based on these categorical ratings, review sites calculate an overall “score” for the provider, usually represented numerically (e.g., “8/10” or “four stars out of five”). Some review sites allow patients to supplement their grades with comments or narratives while others compile only numerical data.

Commentators debate the usefulness and legitimacy of physician-review sites. For example, while one analyst argues that these websites can improve standards of care by physicians by providing timely and detailed feedback to providers, another responds that the anonymous and unscientific data gleaned from these sites is worthless or even detrimental. The American Medical Association (AMA) and some states’ attorneys general have expressed concerns that these ratings merely reflect disgruntled patients’ venting and can be misleading. Similarly, the American Academy of Family Physicians has warned that “choosing a physician only according to consumer ratings can deprive patients of high quality medical care, particularly if those ratings are based on unrecognized and unvoiced anger or unjustified allegiance.”

So how do physicians fare on these websites? For all the wrath these sites have provoked, the result is surprising: studies show that doctor ratings are overwhelmingly positive. For example, one study of thirty three physician-rating websites found that 88 percent of reviews were positive, while 6 percent were negative, and 6 percent were neutral. Another study analyzing 15,000 reviews from 2004–2010 on the site DrScore.com found the average doctor rating was 9.3 out of 10, with an astonishing 70 percent of reviewed physicians receiving perfect scores.

Although review sites are increasingly popular, they may not yet factor significantly in consumers’ health care purchasing decisions. A 2011 study conducted by the Pew Research Center’s Internet & American Life Project concluded that physician-review sites “have not yet become health care decision-making tools for most consumers.” Indeed, only 16 percent of Internet users have consulted online rankings or reviews of doctors or other providers, while 4 percent of Internet users have posted an online review of a doctor. Another study, however, reports higher figures: that 37 percent of adults have consulted physician-rating sites, and 7 percent of people who sought information about their provider posted a review online.

Based on these findings, it seems strange that doctors and medical organizations have reacted so strongly to online reviews. There may be several explanations for their discomfort. While provider reviews on the whole are positive, individual doctors may still dislike negative ratings. Obviously, no one wants to be criticized, especially on such a public and enduring forum as the Internet. Reviews of individual doctors also tend to be spread out over different websites. For example, a physician who has four ratings on RateMDs, two of vwhich are negative and neutral, may feel that his practice is unfairly represented to those who consult only that website. And the subjective nature of review sites may particularly rankle scientifically minded medical professionals.

But there may be more intriguing practical and philosophical issues at play: online reviews might present harms and challenges that uniquely affect the medical profession. First, patient privacy protections restrict how and when doctors can respond to critical reviews. Second, doctors may believe that they are unfairly criticized by patients who lack the specialized medical knowledge to comment meaningfully on their treatment. Third, certain professional and societal factors may intensify the sting of patient criticisms.

While some review websites like Yelp allow critiqued businesses to respond directly to criticism, physicians may not be able to post detailed rebuttals because of patient-privacy protections under state law and the Health Insurance Portability and Accountability Act of 1996 (HIPAA). Specifically, the HIPAA Privacy Rule protects all “individually identifiable health information” held or transmitted by a covered entity or its business associate, in any form or media, whether electronic, paper, or oral; this information is termed “protected health information (PHI).” Patients may freely self-disclose PHI—and many do when they volunteer detailed accounts of their care online. But this does not mean that a patient automatically authorizes the doctor to discuss all aspects of the patient’s treatment. If a physician discusses or transmits PHI without a patient’s consent, she faces penalties of up to $50,000 per violation depending on its nature and extent and resulting harm. Thus, while a hotel manager may be able to mitigate a negative review by directly and thoroughly responding to a critical review, a physician risks violating a patient’s privacy rights if she provides specific details about a reviewer-patient’s care. In the words of one chagrined dentist, “Patients get to lie on Yelp, but because of HIPAA, we cannot tell the truth about the patient and what really happened.”

Although HIPAA’s privacy safeguards uniquely restrict a physician’s ability to thoroughly respond to poor reviews, doctors may still effectively respond to criticisms with general information about their practices and procedures. Thus, a physician can respond to complaints about parking, staff, or billing structure without fear of violating a patient’s privacy. According to the founder of one physician-review website, complaints about wait times are a “huge issue,” as are comments about poor bedside manner and curtness. Physicians may even respond to specific criticisms about medical care by describing their practice’s procedures and standard of care without confirming or denying that a reviewer is a patient.

Physicians may feel that they are unfairly maligned by patients who lack the specialized medical knowledge to comment objectively on their treatment. Some commentators argue that the typical lay patient cannot—and therefore should not—make technical assessments that others might rely on.

Yet studies have revealed that patients’ online reviews are not typically objective, technical critiques; rather, they focus heavily on nonclinical factors like the amount of time the doctor spends with them, parking accommodations, and ease of scheduling appointments. For example, one study found a very strong correlation between online patient satisfaction ratings and shorter office wait times. Available data indicates that patients simply are not evaluating “surgical technique or diagnostic abilities” despite what many doctors seem to fear. While these types of findings naturally raise arguments about the value of subjective “customer service” focused reviews, physician-review websites are best understood as just one resource that consumers can consult when making health care decisions, alongside other objective quality measures like aggregated clinical data. The subjective experience does matter to patients, and patient reviews can capture things that do not show up well in objective statistics; for example, whether the doctor includes the patient as a partner indecision-making or whether the office staff is rude or unhelpful.

Opponents of review sites may also argue that these sites ignore the collaborative nature of medical care. For example, if a non-adherent patient fails to be responsible in her own care, the physician should not be blamed for a poor treatment outcome. Furthermore, because receiving shoddy health care can have devastating consequences on a patient’s well-being, consumers may be unusually sensitive to any negative comments about providers.

While non-adherent patients are an unfortunate reality, doctors should not fear the occasional negative review. Studies indicate that some mediocre or negative ratings actually improve consumer confidence in reviews because mixed reviews are perceived as more genuine.

Physicians must also trust that prospective patients will be savvy consumers of review data who can decide what is trustworthy. And even if patients are especially impressionable to health review data, physicians should embrace review sites and proactively use them as a tool to actively increase business and respond to patients’ concerns. Today, “physicians compete for patients just as business people compete for customers.” Doctors disadvantage their practices when they ignore anecdotal reviews or passively wait to receive feedback.

A significant component of medical education aspires to make doctors skillful, knowledgeable, and moral practitioners. Reflecting this goal, Principle 1 of the AMA’s Principles of Medical Ethics provides that a physician “shall be dedicated to providing competent medical care, with compassion and respect for human dignity and rights.” Principles 2 and 8 further state that a physician should “uphold the standards of professionalism, be honest in all professional interactions[,]” and “regard responsibility to the patient as paramount.” Beneficence and nonmaleficence, the respective duties to do good and to do no harm, are foundational principles in the ethos of medicine. When a patient alleges in a review that a doctor harmed her, whether through a medical error or even an offensive bedside manner, that criticism strikes at the heart of the doctor’s professional integrity. Even unflattering remarks about staff friendliness or parking accommodations may be interpreted to impugn a physician’s ability to run her practice well.

As discussed below, however, doctors should recognize that critical patient reviews, although sometimes uncomfortable to read, can give them direct insights into their patients’ preferences and priorities. Doctors should interpret these criticisms constructively and consider whether changing certain behaviors or aspects of their practices would be in their best financial and professional interests.

With the rise of physician-review websites, doctors have increasingly been suing and threatening to sue their patients over their reviews. This section explores defamation law.

Defamation law attempts to balance a plaintiff’s interest in an untarnished reputation against a defendant’s First Amendment right to freedom of speech. Many legal experts and health care professionals believe that the tort of defamation is the proper legal response to addressing injurious or false reviews. On the other hand, defamation law frequently skews toward the protection of free speech, and cases are notoriously difficult for plaintiffs to win: one study found that only 13 percent of defamation plaintiffs prevail. This is primarily for two reasons. First, plaintiffs must meet a high prima-facie burden in demonstrating defamation. Second, a defendant can escape liability through a “panoply of privileges and affirmative defenses.” Historically complex, defamation law becomes even more complicated when applied to online reviews, implicating issues like author anonymity and questions of service provider liability.

Defamation is a creature of state law, so the precise requirements vary from state to state. However, a cause of action for defamation generally requires: (1) a false and defamatory statement concerning another; (2) an unprivileged communication of that statement to a third party; (3) fault amounting to at least negligence on the part of the speaker; and (4) either actionability of the statement irrespective of special harm (defamation per se) or the existence of special harm caused by the publication (defamation per quod). A communication is defamatory if it “tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him.” Courts consider the circumstances surrounding the communication and evaluate its effect upon the average reader or listener.

Analysis depends on whether the statement was slander (oral defamation) or libel (written defamation). At common law, if the communication was slanderous, the plaintiff must prove that the statement caused economic loss. On the other hand, if the communication was libelous, the plaintiff ordinarily does not have to prove economic harm. The rationale behind this distinction is the permanence of written communications as opposed to the ephemeral qualities of spoken ones. In all cases challenging online patient reviews, plaintiff physicians have proceeded under the theory of libel.

Certain categories of speech are so plainly defamatory that they do not require a plaintiff to show any special (i.e., economic) harm. Injury to reputation is presumed merely from the fact of publication. A statement can be defamatory per se if it imputes the commission of a crime or “incompetence, incapacity, or unfitness in the performance of [one’s] trade, occupation or profession.” Thus, statements that a physician acted unprofessionally or unethically are presumptively defamatory. For example, in Nasr v. Connecticut General Life Insurance Company, the court upheld the per se defamatory characterization of slanderous statements that a physician was a “quack,” operated a “racket,” prescribed ineffective treatments, and was “under investigation.” Similarly, in Fuste v. Riverside Healthcare Association, Inc. , the court held that slanderous statements that two doctors “abandoned” their patients and that there were “concerns about their competence” prejudiced the doctors in the practice of their profession and were defamatory per se.

While critical patient reviews might inherently seem defamatory per se, that is not necessarily the case: “a mere expression of dissatisfaction with a person’s professional performance is not defamatory per se.” As discussed below, the powerful defenses of opinion and substantial truth can also shield patient-reviewers from liability for statements criticizing a doctor’s fitness as a practitioner.

When a plaintiff is a private citizen defamed about a private matter, the defendant must be at least negligent with respect to the truth of the statements. A defendant is generally negligent when she fails to act reasonably in attempting to learn whether a statement is true or false. On the other hand, plaintiffs who are “public figures” must meet an additional burden, showing that the defamer acted with “actual malice.” To prove actual malice, the plaintiff must show that the defendant acted with knowledge of falsity or reckless disregard for the truth.

The fact that an individual practices medicine does not automatically make her a public figure, though she may become one if she holds herself out as a pioneer, “seek[s] to develop and advance a new treatment option,” or seeks publicity or injects herself into a matter of public controversy. For example, in Rodriguez-Erdmann v. Ravenswood Hospital Medical Center, a physician was denied staff membership at the hospital where he worked. After the physician held several press conferences alleging that he was discharged in retaliation for “speaking out about problems of malpractice,” the hospital circulated a memo stating that the physician was merely acting out of disappointment. In the resulting libel suit, the court held that the doctor was a public figure in this instance because he “thrust himself to the forefront of the controversial issue of medical malpractice.” Because the physician could not prove actual malice, the court affirmed dismissal of his suit. Thus, a “public figure” physician must satisfy the higher burden of proving actual malice to sue a patient for a review implicating that status.

Physician-review websites frequently allow users to post their impressions without requiring any personally identifying information. Because the First Amendment protects the rights of individuals to speak anonymously, even on the Internet, physicians may have difficulty identifying anonymous and pseudonymous defendants. A doctor may have to issue a special production of evidence subpoena to a website administrator or web host to compel them to reveal identifying information about an anonymous poster. Once the poster is “unmasked,” the defamation suit can proceed as usual. Courts, however, have expressed discomfort with issuing these types of subpoenas, citing the potential of impermissibly chilling free speech.

There is no clear standard that courts apply when asked to identify an anonymous defamation defendant on the Internet. One authority, however, is Dendrite International, Inc. v. Doe No. 3, in which the court articulated a four-part test for when an anonymous poster’s identity may be revealed. First, the plaintiff must make an effort to notify the anonymous poster that an order for disclosure is pending against him and to allow the anonymous defendant reasonable time to oppose the application. Second, the plaintiff must specifically identify the allegedly defamatory material. Third, the plaintiff must present a prima facie case of defamation against the anonymous poster. Fourth, the court must balance the defendant’s First Amendment right to anonymous free speech against the strength of the plaintiff’s prima facie case and the need for the defendant’s identity to be revealed for the case to go forward.

Even if a physician can successfully establish a prima-facie case of defamation, a complex set of protections and affirmative defenses may shield a poster’s online comments. Aggrieved doctors are further stymied by the Communications Decency Act (CDA), which protects websites that host disparaging comments. Finally, the threat of anti-SLAPP (Strategic Lawsuits Against Public Participation) suits and negative publicity resulting from a defamation suit may effectively be defenses by barring or deterring a physician from bringing a defamation suit.

In an online defamation case, both the author of the defamatory statements and the operator of the service displaying the defamatory material are potential defendants. For economic reasons, plaintiffs might prefer to sue Internet Service Providers (ISPs) and website administrators rather than individual authors who are less likely to have “deep pockets.” However, Section 230 of the CDA largely immunizes ISPs from liability for content posted on their websites. Specifically, subsection 230(c)(1) provides that “[n]o provider or user of an interactive computer service shall be treated as the publisher of any information provided by another information content provider.” In other words, even if a website allows users to post potentially actionable content, these sites are immunized from liability. As a result, “nearly all of the cases interpreting Section 230 defenses have found ISPs immune.” However, ISPs or site administrators may still be liable if they “interact[] with the content or its source” or are “responsible for the creation or development of the content.” Perhaps the clearest example of this exception is editing user comments: if a review website alters a user’s statements in such a way that they can be read defamatorily, the site loses Section 230 immunity.

In Reit v. Yelp!, Inc., dentist Glenn Reit sought a preliminary injunction requiring the consumer review website Yelp to remove an anonymous comment alleging that that his office was “small,” “old,” and “smelly” and that the equipment was “old and dirty.” Reit blamed the post for reducing the number of appointment calls he received from ten to fifteen per day to four or five per day. The court denied Reit’s request for an injunction, finding that Yelp was an “internet computer service” within the contemplation of Section 230 and therefore free to display the post. *

Although it is largely fruitless for doctors to sue review websites directly, physicians still have a strong interest in pursuing the individual authors of offensive material. Aside from the obvious desire to remove reviews, a physician may act to recover damages or for personal vindication. We turn now to the defenses available to the individual authors of defamatory content, including truth and opinion.

It is axiomatic that truth is an absolute defense to defamation. To be clear, however, a defendant does not have to prove that a statement is entirely true to escape liability, only that it is substantially true. Courts may “overlook[] minor inaccuracies” in allegedly defamatory material and focus instead on the overall gist of a statement when considering its veracity.

But even true statements can be defamatory when they are misleading or mischaracterize the plaintiff. For example, in Wong v. Tai Jing, a father posted a scathing review of his child’s dentist on Yelp. In his post, he implied that the dentist dangerously administered general anesthesia, failed to disclose that the child’s fillings contained mercury (a potentially dangerous heavy metal), and misdiagnosed the child. While the dentist did in fact apply general anesthesia, implant a filling with mercury, and did not discover all of the child’s cavities, the court found that the father’s review deliberately omitted the legitimate reasons underlying these circumstances. Thus, even though the review was technically factual, its accusatory tone and misleading implications transformed it into libel. **

The defense of opinion is another privilege that may be remarkably difficult for an aggrieved physician to overcome. As a threshold matter, courts must determine whether allegedly defamatory speech asserts facts or opinions. The First Amendment protects pure statements of opinion, no matter how derogatory. On the other hand, a disparaging statement may be actionable if an average reader or listener might reasonably believe that it is an assertion of fact. Courts look to the nature and context of a statement to determine if it is a protected opinion. A statement that “appears in a place usually devoted to, or in a manner usually thought of as representing personal viewpoints, is . . . likely to be understood—and deemed by a court—to be nonactionable opinion.” A comment is not usually defamatory when it is hyperbolic, wildly offensive, or consists of “loose, figurative language.”

Thus, a physician who believes that she is defamed on a review site must show that an offending comment could reasonably be interpreted as factual. Ironically, outrageous accusations that might offend a physician the most are likely protected because of their hyperbolic quality. For example, a statement maligning a physician as “the biggest idiot I have ever met” likely would be nonactionable.

Physicians who sue a patient for posting a negative review may also be subject to an anti-SLAPP (Strategic Lawsuits Against Public Participation) motion to strike the complaint on the grounds that the online posting is protected public interest speech. Over half of the states have adopted anti-SLAPP legislation to curb frivolous lawsuits that defamation plaintiffs frequently bring to harass, bully, and intimidate critics into silence. Although these laws vary from state to state, they share two key features. First, they provide an expedited procedure to short-circuit SLAPPs, conserving all parties’ time and resources. Second, successful defendants are awarded legal defense costs. Thus, facing the double risks of a dismissed suit and having to pay the defendant’s fees, physicians must think carefully about the merits of a case before bringing a potential SLAPP.

Finally, one of the most significant challenges facing potential online defamation plaintiffs is a phenomenon humorously referred to as the “Streisand Effect.” In 2003, Barbra Streisand unsuccessfully attempted to sue photographers for $50 million to remove an aerial photograph of her mansion from the Internet. Before Streisand filed the suit (claiming invasion of privacy), hardly anyone knew the picture existed; after she filed the suit, the photo was downloaded and viewed 420,000 times. Thus, the Streisand Effect “covers those situations where the threat of legal action has brought publicity to the information sought to be suppressed.” When physicians choose to pursue an online defamation case, they risk calling attention to a statement that might otherwise go unnoticed; this heightened publicity is exactly the opposite of what the physicians want. In the words of one commentator, “the remedy may be worse than the problem.”

Indeed, the Streisand Effect has played out with surprising ferocity when physicians have attempted to suppress negative online reviews. For example, in 2010, a Minnesota physician filed a $50,000 defamation lawsuit against the son of a former patient. Angered by the physician’s alleged mistreatment of his eighty-five-year-old father, the son posted several negative reviews online that criticized the doctor’s poor bedside manner, disinterested attitude, and insensitivity. After the doctor filed suit, news of the litigation reached Reddit.com, a popular social media website, where readers promptly set out to excoriate the doctor online. As a result, Reddit users churned out over a hundred scathing comments across the web about the physician and the lawsuit. ***

For a physician who simply wants to remove a review she believes or  knows is unfair or untrue, resorting to defamation law can be a nightmare. It is frustratingly complex, with a dizzying array of factors to juggle. Physicians may have difficulty establishing a prima-facie case, and even if they can, defendants may escape liability through a vast network of defenses and privileges. Litigation may attract publicity to an otherwise unremarkable claim. And practically speaking, lawyers are rarely willing to offer a contingency fee arrangement in defamation practice; many patient-reviewers will likely be judgment-proof as well.

This Note does not call for physicians to entirely abandon defamation law. For example, if a review falsely alleges serious misconduct, a doctor should consider filing suit. But in less extreme cases, this Note advocates looking to defamation as a measure of true last resort, and only after careful and realistic consideration of the case’s merits.

SOURCE

* Reit V. Yelp

** Wong v. Tai Jing

*** McKee v. Laurion

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