ALERT PRESENCE: “A Physician Review Gone Wrong”

MARCH 24, 2011

“A Physician Review Gone Wrong”

Brett Pollard, ALERT PRESENCE

For several years now, I have been actively involved in issues related to reputation management for physicians. It’s an issue I’ve discussed at length with clients and offered thoughts on this blog. Through my research, I have come across some pretty interesting examples of the challenges physicians face in a world where there are dozens of online review sites. However, I stumbled across a very interesting situation where a doctor’s decision to sue the son of one of his patients for a negative review resulted in a reputation disaster.

After the lawsuit was detailed twice in a Minnesota newspaper, a local resident took action by posting a critical comment and link (screenshot below) on the social news site, Reddit. With a user-controlled ranking system Reddit features the most popular posts to an audience generating over 1 million page visits per day. As you might expect, negative exposure on a site like this leads to undesirable consequences.

I have no interest in offering insight into the specifics of the legal matter as my knowledge of how this all transpired is limited to the information provided in the newspaper articles. However, the fallout from the lawsuit certainly warrants exploration. There is something to be learned from this for those in a position to advise physicians about appropriate responses to negative reviews. It’s necessary to have an understanding of the potential backlash if your response is not well received by the general public. This situation also illustrates the need to have a strategy to help prevent a scenario that may lead to irreparable harm to the physician’s reputation.

Timeline and Consequences

June 2010 – A doctor from Duluth, Minnesota files a lawsuit against the son of a former patient claiming the son made defamatory statements about his father’s care. The statements were allegedly posted on a physician review site in addition to complaints lodged with the associated hospital and other third parties. The local paper publishes an article reporting the lawsuit where the defendant’s lawyer admits his client posted the negative review but later requested successfully for it to be removed from the site.

February 2011 – The local newspaper publishes a follow up story regarding the lawsuit with an update of the legal proceedings.

March 2011 – A regular user of the social news website, Reddit, posted a link to the story on March 21st, 2011 while suggesting the Reddit community should post poor ratings for this doctor on various physician review sites.

A simple Google search reveals this is exactly what happened. After examining some of the top search results for the doctor’s name, it is clear the Reddit post triggered a large number of negative reviews – many of which are clearly fabricated. The following is just a sample of what I found.

Google Place Page – Since Google pulls in reviews from various sources, my focus was only on those reviews posted through the Google Review service. There were 33 reviews (all of which were negative) and every one was posted on March 22nd or later.

Vitals – There were a total of 39 written reviews. 32 of the reviews were posted on March 21st or later and each one was negative.

Healthgrades – There were 34 patient ratings on Healthgrades (mostly negative). In this case, the dates of each review are not posted so it’s unclear how many of them are a result of the Reddit community response.

I’m not all that surprised by the backlash – especially considering the story gained considerable traction on Reddit. It’s just another good example of the viral power social media possesses.

Filing a lawsuit against a patient for a negative review is a very slippery slope – even if the statements are defamatory. What alternative actions exist for dealing with a harmful or misleading review? This question is generic and does not imply the patient in this case made any defamatory statements. That is for the courts to decide.

Brett Pollard is an online marketing consultant specializing in web 2.0 strategies, local search, SEO, ORM and social media for the healthcare industry and small/medium-sized businesses. With over a decade of Internet marketing experience for private ventures, Brett now shares his expertise with clients throughout North America.

SOURCE

Comments:

Lora Baker:

Wow -just checked his Google reviews. They are so obviously fake that it is hard to believe they are still posted. Unfortunately for this doctor, his choices have resulted in nationwide backlash. If any prospective patient looks him up before calling, they will clearly choose another doctor. I recommend to our clients to work out bad reviews with the reviewer if possible – behind the scenes. If not, most potential clients understand that everyone can end up with a bad review or 2 -most people are more motivated to leave a review if they are upset. Now, Dr. David McKee has so much (fake) bad feedback out there that his reputation is in tatters. Yikes -so glad he is not my client!

Susan January:

The Minnesota State Court of Appeals has issued an opinion. Filed January 23, 2012. Affirmed in part, reversed in part, and remanded. The interfering with business claim was dismissed as being without merit. The patient’s son’s comments are exhaustively reviewed by the court and classified as either opinion (dismissed) or factual assertions. Since the asserted facts of the situation are for a jury to decide, on 6 picky little points the doctor is entitled to a jury trial to determine the facts. The factual assertions that are in dispute verge on opinions or beliefs, because the doctor and the patient’s son dispute what was said and/or what was meant by what was said. They thought he was a jerk, the doctor says he was joking or being friendly or didn’t see them or they don’t understand what he meant. Good example of taking things way too far and doing more damage in the process. Good grief.

Susan February:

My husband is a top performing Cardiac surgeon with great results.But a colleague of his who has been banned from operating due to disruptive behavior is writing bad reviews of him on vitals. How I know this is that every time he gives himself a great review,he gives my husband a bad one. And a doctor who has not done heart surgery for 6 months is getting great reviews and a doctor working every day – 24hrs with all his patients going home in less than 3-4 days is getting bad reviews –on VITALS -something needs to be seriously done.

Samantha Theras:

This can be so frustrating to deal with. Numerous websites online are misleading and fighting bad online reviews with litigation has proven itself time and again to have the worst consequences. The results are never what you expect them to be. I’m sympathetic to some situations in where it is a legitimate review with constructive criticism although, some reviews can be and are bogus.

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DULUTH NEWS TRIBUNE: “Duluth Man Fights Defamation Suit By Doctor He Criticized”

FEBRUARY 10, 2011

“Duluth Man Fights Defamation Suit By Doctor He Criticized”

Mark Stodghill, DULUTH NEWS TRIBUNE

A Duluth physician who sued a patient’s son for defamation was in court as the son attempted to have the case thrown out. Dr. David McKee, a neurologist with Northland Neurology and Myology, Duluth, Minnesota, filed the lawsuit against Dennis Laurion of Duluth in St. Louis County District Court in 2010. McKee alleges that Laurion defamed him and interfered with his business by criticizing him by making false statements on websites and to various third parties including other physicians in Duluth, the St. Louis County Public Health and Human Services Advisory Committee, St. Luke’s hospital and professional organizations.

Laurion’s father, Kenneth, now 85 and a Navy combat medic in the Solomon Islands during World War II, suffered a hemorrhagic stroke and was treated by McKee at St. Luke’s hospital April 19. He recovered from his condition. However, he and his family allege that McKee was rude and insensitive to the patient in his actions and comments.

The defendants claim that when McKee didn’t find Kenneth Laurion in the Intensive Care Unit, he said: “I had to find out whether you had transferred or died.” McKee confirmed in deposition that he made the statement, but claimed it was a jocular comment meant to relieve tension.

Kenneth Laurion, his defendant son, and daughter-in-law were in the courtroom Thursday, as was plaintiff McKee. McKee is asking for more than $50,000 in damages. Laurion claims that any statements he made about the doctor were true and that he is immune from any liability.

Duluth defense attorney John Kelly argued that his client’s statements were substantially true, were statements of opinion and couldn’t be demonstrated to be false. “He is standing up and speaking out for his father. That is his motivation … in the hope that something gets done,” Kelly told the court.

McKee is represented by Minneapolis attorney Marshall Tanick. Tanick told the court that Laurion used the websites as a “weapon of mass destruction” to injure the reputation of McKee, place the doctor in a negative light and impugn his professional practice.

In a written motion, Tanick wrote, “The totality of statements made on these websites would be injurious to the reputation and standing of a doctor in the eyes of others who might see it, including patients or prospective patients, colleagues, peers, referral sources, and others.”

Sixth Judicial District Judge Eric Hylden is presiding over the case. As the parties introduced themselves to the court, Hylden told them it was a “very interesting type of case.”

Thinking out loud, Hylden suggested that Laurion has a constitutionally protected right to an opinion, but “isn’t there some limitation on what a person can say in that public forum?”

Kelly said his client made his statements of opinion in good faith and they were not demonstratively false. “There has to be a protected area in which someone like Dennis Laurion can come forward, stand up and speak for his father and say, ‘Look, in this particular instance, my father didn’t get treated very well and you ought to know that.’ ”

Tanick argued that Laurion’s criticism goes much farther than that. “He chose to tell the world at large in a way that was injurious to Dr. McKee’s reputation,” Tanick said.

McKee V. Laurion – Affidavit Of Charles Payne, Private Investigator

JANUARY 28, 2011.

The following is a replica of a document from the Minnesota defamation lawsuit David McKee M.D. V. Dennis K Laurion.


STATE  OF MINNESOTA

DISTRICT  COURT, COUNTY OF ST. LOUIS

SIXTH DISTRICT

Case Type:  Defamation, Court File No.:  69 DV-CV-10-1706


David  McKee, M.D., Plaintiff,

v.

Dennis Laurion,     Defendant.

AFFIDAVIT OF
CHARLES PAYNE


STATE OF MINNESOTA   )
)  SS.
COUNTY  OF HENNEPIN )

CHARLES PAYNE, being first duly sworn under oath, states as follows:

1. My name is CHARLES PAYNE. I am a licensed private investigator in the State of Minnesota, License Number  261. I  have been licensed since 1978. I have been involved in the investigations industry since 1971.

2. My work includes a variety of investigations for various purposes, including civil litigation.

3. I do not know any of the parties in this lawsuit. I do not have any financial stake in the outcome of this case, except I am being paid my normal hourly rate for my work in this matter.

4. I have been asked to locate an individual who was identified as a “friend” nurse of Defendant Dennis Laurion, to whom Laurion attributes the statement “He is a real tool,” in reference  to  Dr.  David McKee. Defendant Laurion used this phrase in his website postings and various correspondence  that  he  wrote  to  professional  organizations,  colleagues, and peers of Dr. McKee, which I understand form the basis for this lawsuit.

5. Having been asked to locate this individual, the  only  criteria provided by Mr. Laurion of his “friend” nurse is less than minimal. Mr. Laurion maintains that she was someone with whom he worked while he was a part-time employee for about seven years at St. Mary’s Medical Center in outpatient records, but he does not know her name. He gave a very limited physical description of her as  in  her  50’s,  about  5’6″ tall, dark blond or light brunette hair, graying, with a “trim” build. The representation that he does not even recall her first name makes this search virtually impossible.

6. Mr. Laurion was not able to identify any particular unit of  the hospital she worked, other than she had  some  outpatient  position.  He gave the names of some other personnel with whom he worked.

7. I have instituted efforts to begin to try to locate this  person.  I am severely handicapped by the very limited information furnished by Mr. Laurion, which is surprisingly sparse for a person whom he said was a “friend,” and whom he worked with for some seven years.

8. My efforts to locate this person included  the  following:

•    I have instituted research with the Minnesota Board of Nursing, located at 2829 University Ave. SE, Minneapolis, MN to determine the number of nurses that are currently and had historically been licensed with the State of Minnesota since 01/ 01/ 2000 in St. Louis County. Our preliminary research determined that in St. Louis County there are 4048 current licensees that are female. Using the event of Mr. Laurion meeting this individual at the Lakeside Post Office which  is  located  at  4427 E. Superior Street, Duluth, MN 55804, I have begun to have the search narrowed to the 55804 zip code. At the time of this writing, it is believed there are 560 licensees in that zip code having held a nursing license since  01/ 01/ 2000.

•    With the gross absence of any identifying information  and without  access to the Human Resources at St. Mary’s Hospital,  these  reasonable  efforts are the  only avenue of research  currently  underway.

•    As this research has only recently begun, extensive further  research needs to take place in addition to contacts with these prospective individuals to identify the “friend” nurse. If the person exists, which is uncertain, it will require more detailed information from Mr. Laurion in order to find her. I am told that Mr. Laurion has made no efforts to find her himself. If she does exist, Mr. Laurion presumably has more information about her that would allow us to locate her.

The above is true and correct to the best of my knowledge.

Dated: January 28, 2011
/S/ CHARLES PAYNE

Subscribed and sworn to before me
This day of January 2011

/S/ Notary Public                                                      [ Seal ]

KTAR Newsroom: Minnesota High Court Say Online Post Legally Protected

Minnesota High Court Say Online Post Legally Protected 

KTAR Newsroom

January 30, 2013

A man’s online post calling a doctor “a real tool” is protected speech, the Minnesota Supreme Court ruled.

The state’s highest court dismissed a case by Duluth neurologist David McKee, who took offense when a patient’s son posted critical remarks about him on rate-your-doctor websites. Those remarks included a claim that a nurse called the doctor “a real tool,” slang for stupid or foolish.

The decision reversed a Minnesota Court of Appeals decision that would have let the doctor’s lawsuit proceed to trial.

The opinion, written by Justice Alan Page, said the comments posted by Dennis Laurion don’t add up to defamation because they’re opinions that are entitled to free speech protections.

“Referring to someone as `a real tool’ falls into the category of pure opinion because the term `real tool’ cannot be reasonably interpreted as stating a fact and it cannot be proven true or false. … We conclude that it is an opinion amounting to `mere vituperation and abuse’ or `rhetorical hyperbole’ that cannot be the basis for a defamation action,” the justices said.

The ruling also said it doesn’t matter whether the unnamed nurse actually exists. McKee’s attorney argued that Laurion might have fabricated the nurse, something Laurion’s attorney denied. And it said the doctor’s objections to Laurion’s other comments also failed the required legal tests.

The case highlighted the tension that sometimes develops on ratings sites, such as Yelp and Angie’s List, when the free speech rights of patients clash with the rights of doctors, lawyers and other professionals to protect their good names.

Experts say lawsuits over negative professional reviews are relatively uncommon and rarely succeed, partly because the law favors freedom of speech.

This dispute was over how McKee treated Laurion’s father, who had suffered a stroke, during a single hospital visit in 2010 that lasted 10 to 15 minutes. Laurion expressed his dismay in several online posts with what he considered the doctor’s insensitive manner.

“I’m sure he and his family are very happy with this result,” Laurion’s attorney, John Kelly, said. “It’s been a long and difficult process for them.”

McKee’s lawyer, Marshall Tanick, said 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.

While the decision is not binding in other states, Kelly and Tanick agreed that it might influence how other courts would rule on similar questions. Kelly said lawyers often look at rulings from other jurisdictions when they put cases together, sometimes for leads or guidance.

“Certainly this is a cutting edge issue and I’m sure lawyers and courts in other jurisdictions will pay attention to this decision and give it the weight it deserves,” Tanick said.

SOURCE

Defendant Dennis Laurion’s Web Posting

Defendant Dennis Laurion’s Patient Complaint

Plaintiff David McKee’s Reply To Patient Complaint

Plaintiff David McKee’s Cease And Desist Letter To Defendant Dennis Laurion

Defendant Dennis Laurion’s Complaint To Minnesota Board Of Medical Practice

Plaintiff David McKee’s Complaint To Sixth Judicial District Duluth Court

Plaintiff David McKee’s Response To Minnesota Board Of Medical Practice

Defendant Dennis Laurion’s Answer To Plaintiff David McKee’s Complaint

Defendant Dennis Laurion’s Motion For Summary Judgment

Defendant Dennis Laurion’s Deposition Extracts

Plaintiff David McKee’s Deposition Testimony About Circumstances Before Encounter With Laurion Family

Plaintiff David McKee’s Deposition Testimony About Encounter With Laurion Family

Plaintiff David McKee’s Deposition Testimony About Circumstances After Encounter With Laurion Family

Plaintiff David McKee’s Deposition Testimony In Response To Questions By Marshall Tanick

Affidavits By Defendant Dennis Laurion’s Parents

Defendant Dennis Laurion’s Supplemental Motion For Summary Judgment

Plaintiff David McKee’s Motion To Oppose Summary Judgment

Defendant Dennis Laurion’s Reply Memo In Support Of Motion For Summary Judgment

Sixth Judicial District Court’s Order On Motion For Summary Judgment

Plaintiff David McKee’s Appeal Of Order On Motion For Summary Judgment

Plaintiff David McKee’s Brief To Minnesota Court Of Appeals

Defendant Dennis Laurion’s Brief To Minnesota Court Of Appeals

Plaintiff David McKee’s Reply Brief To Minnesota Court Of Appeals

Minnesota Court Of Appeals Order To Strike Portion Of Plaintiff David McKee’s Reply Brief

Minnesota Court Of Appeals Announces Decision

Defendant Dennis Laurion’s Petition For Review By Minnesota Supreme Court

Plaintiff David McKee’s Opposition To Review By Minnesota Supreme Court

Defendant Dennis Laurion’s Brief To Minnesota Supreme Court

Plaintiff David McKee’s Brief To Minnesota Supreme Court

Defendant Dennis Laurion’s Reply Brief To Minnesota Supreme Court

Minnesota Supreme Court Decision On David McKee MD V. Dennis K. Laurion

David McKee MD v. Dennis Laurion 2010

David McKee MD v. Dennis Laurion 2011

David McKee MD v. Dennis Laurion 2012

David McKee MD v. Dennis Laurion 2013

“Taking Cloaks to the Cleaners” Mentions McKee V Laurion

Taking Cloaks to the Cleaners: A Case Study of Yelp V.Hadeed Carpet Cleaning Reveals the Need for Stronger Unmasking Standards

A THESIS  SUBMITTED TO THE FACULTY OF UNIVERSITY OF MINNESOTA

BY

Kristen Patrow

IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF MASTER OF ARTS

Dr. Amy Kristin Sanders

June 2014

This thesis begins with a discussion of the U.S. Supreme Court’s seminal defamation cases. A discussion of the historical protections for anonymous speech follows, providing a foundation for the discussion of anonymous speech online. This paper examines multiple cases to establish the judicial standards that courts have developed to determine whether to unmask the identity of anonymous commenters online. A case study of the recent Yelp decision follows, highlighting the incongruity with these various standards. Next, an in-depth examination of James Carey’s models of communication and the theoretical justifications for protecting anonymous and harmful speech explains the need for a national unmasking standard. To conclude, the thesis proposes an unmasking law that comports with First Amendment protections of speech and societal interest in punishing harmful speakers for their misdeeds.

INTRODUCTION

What happens when negative reviews appear to correspond with a drop in revenue? For Joe Hadeed, owner of Hadeed Carpet Cleaning, it meant it was time to sue the commenters who left the negative reviews of his business.

Over the course of a few weeks in 2012, a long sequence of negative reviews caused Hadeed’s rating on the popular review site Yelp to plummet. According to Hadeed, following the string of unfavorable comments, business dropped by 30% and revenue dropped from $12 million in 2011 to $9.5 million in 2012, which caused Hadeed to lay off 80 workers and sell six trucks.

Hadeed sued Yelp in July 2012, asserting his company had been defamed because the reviewing customers could not be matched to the company’s records, which included “time, location, and sales data.”

Yelp refused to hand over the identifying information of the commenters, but Virginia’s trial and intermediate appellate courts agreed with Hadeed and held Yelp in contempt.

In January 2014, Yelp appealed to the Virginia Supreme Court, asserting that Hadeed had not adequately proved the statements were defamatory.

More and more frequently, businesses are claiming they need protection from false and defamatory postings, often referred to as “revenge reviews,” on websites like Yelp. Yelp, on the other hand, claims the reviews are protected by the First Amendment and has hired a lobbyist to support a federal Anti-SLAPP law.

Anti-SLAPP laws try to prevent powerful plaintiffs from filing unsubstantiated claims against detractors in an effort to silence their speech. Plaintiffs may use costly court fees to threaten defendants with financial hardship when they disagree with the views that are expressed.

Yelp launched in 2004 as a way for consumers “to connect with great local businesses.” It offers a review system that relies on patrons to rate establishments they frequent. Yelp is one of many online rating and reviewing sites, and it had 120 million unique visitors per month in the last three months of 2013. The company states that most of its reviews praise good businesses, but that it encourages negative reviews as  long as they are honest. In its Terms of Use, Yelp asks reviewers to share their personal experiences and not those of a third party because the company remains neutral in review disputes. Yelp asserts that it expects reviewers to “stand behind your review.”

In recent years, various claims for defamation against users of Yelp and similar websites have surfaced because business owners were not pleased with some of the reviews. When a court finds that a reviewer was merely expressing an opinion rather than a false assertion of fact, the speech is generally protected because under the First Amendment, “there is no such thing as a false idea.

For example, in Minnesota, a man used various doctor-review websites to complain about the physician who treated his father. In his suit, the doctor stated that these claims were defamatory, including a statement where the reviewer calls the doctor a “real tool.” The doctor did not win the case because the Minnesota Supreme Court determined that calling someone a “tool” was an expression of opinion and not a statement of fact. ( *** )

As mentioned earlier, many businesses revile Yelp and believe the website provides a breeding ground for unwarranted disparagement and harassment. Studies have shown that small businesses have more to gain from Yelp reviews, so it follows they likely also have more to lose. Some small businesses have filed complaints with the Federal Trade Commission (FTC) asserting that Yelp’s algorithm unfairly targets businesses who do not buy advertising by highlighting negative reviews.

Of course, Yelp denies these claims and asserts that marketing personnel do not have access to the algorithm. Yelp also notes that businesses are free to set up an account and “claim” their page. Claiming a page allows an establishment to monitor its reviews and to dialogue with reviewers both publically and privately. Opening an account is an easy way for businesses to defend themselves against negative reviews on the very same platform that the negative reviews surface. Businesses can also be proactive and ask satisfied regular patrons to review them on Yelp.

Disgruntled business owners have little recourse against Yelp unless they can prove that the website itself is actively violating the law. Though some businesses have tried to hurt Yelp by filing complaints with the FTC, unless they can prove that Yelp is contributing to unprotected speech, the businesses are out of luck. Section 230 of the Communications Decency Act protects Yelp; the Good Samaritan provision immunizes interactive computer services who publish third-party content. This means that businesses receiving negative reviews cannot hold Yelp legally liable for the comments. Instead, the businesses must target the individual reviewers if they wish to recover damages. According to the Wall Street Journal, Yelp receive s an average of six subpoenas a month, and many of them are linked to civil lawsuits.

. . .

CONCLUSION

A proposed national test solidifies First Amendment protection for anonymous speech online by considering the context and content of speech. Implementing a uniform test for unmasking anonymous commenters would provide legal stability that is not dependent upon technology but instead looks to the core principles that support free expression. Anonymity, in itself, is not always harmful either online or off-line, and it should continue to enjoy robust constitutional protection. The Court has recognized that cloaking has productive uses and may be used to fruitfully counter majority’s views. Dissent theory shows the important role anonymity  plays in the democratic process, a role that has many societal benefits.

A national test would also alleviate some of the current jurisdictional issues that arise when courts address speech on the Internet. Tests that do not properly weigh the importance of protecting masked speakers place First Amendment rights in peril and also impede the due process of law. The ruling in Yelp v. Hadeed shows that some unmasking standards currently in use currently tip the balance in favor of plaintiffs.

Of course, the right to anonymity is not absolute, and courts can rescind anonymity if it insulates those who utter words beyond the scope of First Amendment protections. Appropriate tests must balance the needs of society against the individual’s constitutional right to anonymity. A national unmasking standard, such as the one outlined above, would help ensure that courts correctly strike this balance in future cases.

FULL SOURCE WITH REFERENCES

( *** ) David McKee MD V. Dennis K. Laurion

Negative Online Reviews of Psychiatrists

Internet Sabotage: Negative Online Reviews of Psychiatrists

December 8, 2016

Laura Kendall, MD; Timothy Botello, MD, MPH

Psychiatric Annals, December 2016, Volume 46, Issue 12

Online reviews have become an increasingly popular method for rating virtually any business or service. However, there are problems when it comes to rating physicians online, especially psychiatrists, because the doctor–patient relationship is not parallel to the business–consumer relationship. The psychiatrist–patient relationship is even more unique, especially when the patient is receiving involuntary care. Physicians have a fiduciary duty to their patients to uphold certain ethical principles. In fact, a patient’s demands may sometimes conflict with these values, which can be a cause of an unhappy experience.

Like many other businesses and professions, medicine is becoming increasingly consumer-driven, and online reviews are a natural evolution of this trajectory. Some positive features of online reviews include increased patient autonomy, more feedback for doctors, and improved standards of care. However, many physicians fear that such websites encourage negative reviews or even extortion. There is also an inherent conflict of interest with regard to website traffic, because more sensational reviews lead to heavier web traffic; thus, there is little incentive for websites to remove negative reviews.

Many times, the criteria used for rating the physician include nonmedical factors (office staff or wait times). Rating sites can also be manipulated, as many do not require authentication of the user as the actual patient. An unscrupulous competitor could even write and post a negative review, making these websites completely untrustworthy.

Although there is no consequence for the website or patient for posting an untrue or negative review, the consequences for the physician are numerous. It is disturbing to learn there is false, negative information on the Internet about one’s professional self, some of which may even attack the physician’s character and could be considered defamation or harassment. There are also financial consequences, as insurance companies and potential employers are now looking at these sites.

Patient satisfaction scores are now a focus in health care and are used as an indicator of a physician’s performance and sometimes even used to determine hospital funding. Data are collected despite the fact that high patient-satisfaction scores have been correlated with higher odds of inpatient admission, greater expenditures, and higher mortality. Because of this, physicians have reported increased job dissatisfaction, job attrition, pressure to inappropriately prescribe antibiotics or narcotics, and pressure to order unnecessary tests or admissions due to concerns that they need to generate high patient-satisfaction scores. Physicians are now sometimes more selective when accepting patients, avoiding high-risk patients to improve their ratings. One could postulate that the same is true for physician ratings online, as the need to generate higher scores may threaten a physician’s clinical integrity. Such practices could even potentially harm patients and lead to irresponsible management of health care resources.

In psychiatry, the situation becomes increasingly complex. For psychiatrists who work in a private practice setting, there is a certain level of expectation by the patient for payment of service. Yet, just as in any other field of medicine, it can often be counter-therapeutic to give in to the demands of patients. Sometimes, it is a psychiatrist’s duty to set limits. This is particularly true in the treatment of patients with borderline personality disorder. In such patients, their internal emotional experience is chaotic, vacillating between extreme emotions of idealizing and devaluing, often leading to explosive reactions and unstable relationships. For these patients, such limit-setting could be fuel for the fire that leads them to write negative reviews online.

Many psychiatrists work on inpatient units, at state hospitals, or at correctional facilities, all situations in which the patient is on some sort of legal (often involuntary) hold. Such patients have met a legal commitment criteria reviewed by a civil court. Common among such patients are psychotic illnesses such as schizophrenia, schizoaffective disorder, or psychosis in the setting of a mood disorder. Psychotic patients often experience paranoid or grandiose delusions centered on their treating psychiatrist. Making matters worse, psychiatrists often must petition the court to medicate patients with psychiatric medications against their will when patients refuse psychiatric medications. Such interactions can sometimes lead to a contentious doctor – patient relationship. Although psychiatrists are not above being rated, it can be argued that it is not prudent for people who are acutely psychotic to write online reviews of their doctors. A clinical context might be helpful for the reader to understand the basis for the review, but such contexts are not provided by these websites.

Physicians should be held accountable to practicing and upholding good standards of care, but we maintain that there are more constructive ways of providing feedback. Posting a negative, emotionally charged review may not lead to a change in practice. Instead, submitting formal complaint forms to the hospital, which are reviewed by administrators and supervisors, can lead to feedback provided in a constructive way, which may positively affect practice. Another option would be contacting the state medical board or joint commission for investigation of complaints by patients. In fact, evidence shows that feedback is most effective when provided over a period of time by an authoritative source.

We recommend that physicians educate themselves about online reviews and learn what can be done when an untrue or negative review is posted. All physicians should conduct Internet searches on themselves quarterly. If a physician discovers a negative review, it may be prudent to notify one’s malpractice carrier to alert them of any potential legal action to be initiated by a patient or family member against the physician. It is sometimes possible to have the review removed by contacting the website directly; this may be successful if the review violates the website’s terms of service. It is recommended to take screenshots of the original date and time of the review as well as after the review is removed for your records. Such copies will have a digital timestamp, which will be necessary if any litigation ensues. Also, if a similar situation happens in the future, the physician has documented proof of the prior review and evidence that it was removed.

If the website refuses to remove an untrue or unfair review, a physician could write a response to the review, but there could be potential Health Insurance Portability and Accountability Act (HIPAA) violations. It may be impossible to prove who actually wrote the review in the first place, and responding could inadvertently reveal protected information about another patient’s encounter. Therefore, it is advised to keep the responses general and nonspecific. It may also be advisable to contact one’s malpractice carrier before responding to make sure that no HIPAA violations will be made.

Alternatively, legal action could be pursued by the physician if the online reviews are deemed defamatory; however, such cases are difficult to prove in court and often end up just creating more problems. ( *** ) Even if the physician is victorious, the case may later be referred to repeatedly in articles and legal journals, potentially making the negative review permanent.

As a psychiatrist, it is desirable to cultivate a positive online image. It can be beneficial to maintain a personal website and include positive testimonials from patients, especially in private practice. Currently, there are a few services available that help with a physician’s online image or negative reviews.

Lastly, medical professional societies should lobby to protect physicians from false or negative online reviews and create legislation to hold these websites more accountable for their content. Perhaps such legislation could mandate that reviews not be anonymous, or perhaps patients should have to show proof of appointment to post a review. This could help ensure that only patients are writing reviews of their physicians. Also, websites could require that a minimum number of reviews (positive, negative, or both) be reached before they are released to the public, so as to have a more representative sampling. Reviews could also be more carefully moderated, as is the case with Britain’s National Health Choices website.

Physician rating websites are an inevitable part of life that physicians will continue to face in their careers. In the current system, the negative consequences that result from these websites appear to outnumber the positive qualities. Such websites may be especially problematic in psychiatry, especially in the field of involuntary psychiatry. In such cases, a more formal complaint system is likely to be more effective than anonymous reviews posted on the Internet. We advocate for physicians to have more awareness and education about these websites, and to know that there are options they may pursue if negative reviews are discovered. Finally, medical professional societies may be able to advocate for physicians and even possibly change the way reviews are handled on the Internet.

Source

( *** ) David McKee MD V. Dennis K. Laurion

Physicians Can Help Shape Their Presence On Influential Online Rating Sites

MARCH 2017

 Physicians Can Help Shape Their Presence On Influential Online Rating Sites

TexasMedicine, Tex Med. 2017;113(3):33-40.

By Joey Berlin, Associate Editor (joey.berlin@texmed.org)

Chances are, by now, most physicians know online review sites allow patients to post a review of their doctor visit the same way they might review their car mechanic or a local restaurant. Maybe you think review repositories like Yelp or medicine-specific review sites like Healthgrades are mainly places for crabby customers or patients to complain. With that perception in mind, perhaps you think the minuses of setting up a profile on a review site outweigh the pluses, and you don’t even want to get involved in the online review racket. Or maybe you’re undecided about whether to do so. That’s too bad because, in effect, the internet already has decided for you.

You already have an online presence, and you can decide to shape it, says Nashua, N.H., internal medicine physician Kevin Pho, MD, an author and blogger who focuses on social media in health care. And, in fact, research has shown patients don’t just use online reviews to air grievances. “What these sites will do is create profile pages of every single doctor, whether these doctors want one or not,” said Dr. Pho, the founder of the health blog KevinMD.com.

A February 2014 Journal of the American Medical Association (JAMA) article reported 35 percent of prospective patients who sought online reviews chose a physician based on good reviews from a ratings site, and about the same percentage took negative reviews as a cue to look elsewhere for their care.

If physicians aren’t aware that those profiles of them are already out there, Dr. Pho adds, “that’s going to be the first impression of them online. When patients google their doctors’ names, there’s a possibility that these rating sites may come up first, and that will form these patients’ first impressions of the doctor. That’s why it’s imperative that they be proactive.”

Being reactive is important, too. But when physicians and practices react to something they see online ― say, a viciously critical review ― they also must be careful to react in the right way.

Owning Your Presence and Learning the Sites

Dr. Pho and medical content strategist Susan Gay coauthored the 2013 book Establishing, Managing, and Protecting Your Online Reputation: A Social Media Guide for Physicians and Medical Practices. The book notes most review sites pull information on medical practices from commercially available databases, so those practices already will be listed on the sites without any effort from the physician to establish a presence on them.

The review sites generally operate in a similar fashion, Dr. Pho notes. Most of them allow physicians and practices to “claim” their profiles, which allows them to personalize those profiles with photos, a description of the practice, credentials, and other information. Doing so is an important piece of taking command of an online presence, Dr. Pho says.

Although the review sites operate similarly ― usually allowing a user to leave a practice a star rating, as well as a comment ― learning some of the nuances of each can prove valuable. The directory and review site Vitals, for example, allows a profile owner to hide two negative reviews, a useful tool to negate a patient whose criticism crosses the line. The site Healthgrades has a similar option available to hide reviews, says Texas Medical Association practice consultant Brad Davis. “Some of them have a do-it-yourself vault where you can put X number of items in there, whereas some of them have an appeals process [for reviews], so you want to know how those sites work so you can deal with each accordingly,” he said.

Other popular medicine-specific rating sites include http://www.ratemds.com, http://www.healthcarereviews.com, and http://www.drscore.com.

If you’d rather a prospective patient’s first impression of your practice not come from review sites, you can take steps to minimize that from occurring. While search engine optimization (SEO) professionals hinge their reputations on favorably portraying a client or employer on Google, physicians and practices can potentially do some leveraging of Google on their own without any SEO expertise. The easiest way, Dr. Pho says, is to generate online content about yourself and your practice. He says a great way for physicians to get started is simply to establish a profile on either the general professional social networking site LinkedIn or the health care professional network Doximity. Great SEO-shaping potential also comes from generating content on Twitter, Facebook, or a blog, he says. “It depends on how big you want your digital footprint to be; obviously, the bigger, the better, so the more social media platforms that a doctor engages in, the bigger their online presence will be,” Dr. Pho said. “And not only will that expand their digital footprint, it’s going to push down the visibility of third-party rating sites.”

Reacting the Right Way

Dr. Pho offers five tips to handle online reviews:

  1. Listen to or read the review,
  2. Take the conversation offline,
  3. Read the fine print on a review site,
  4. Ask more patients to rate you online, and
  5. Don’t sue over a negative review.

Seeing what patients say can provide valuable insight into not just what they think of you but also what they think of the entire experience.

“If you look at negative reviews, it’s not necessarily the doctor himself or herself,” Dr. Pho said. “It could be the support staff. It could be the nurse. It could be the medical assistant. It could be the fact that there’s not enough parking. It could be the fact that the magazines in the waiting room aren’t up to date. And it’s important for physicians to be aware of problems in a practice that they may not have been aware of previously.”

Writing a quick online response to a positive review is good practice, the Online Reputation book says, but to stay HIPAA-compliant, ask patients for their permission to respond before posting.

The book says physicians can respond generally to negative reviews in a public forum without violating patient privacy laws if they’re responding to complaints about aspects of the visit, such as wait times or inadequate parking. Physicians can explain those aspects without confirming or denying that the reviewer was a patient. Also, if a physician reaches out to the patient and gets written consent, the practice can post a public response or apology, showing readers of the site that he or she is listening to patients.

Dr. Pho’s third tip, reading the fine print, essentially means knowing what the review site’s policies are so you’ll know what your options are if a disgruntled patient does something out of bounds, such as posting multiple negative reviews. As Get Social notes, some sites will allow the subject of a profile to flag reviews as inappropriate and will consider removing such reviews. “You want to report any comments that you think are suspicious because whenever patients post multiple times, that goes against the terms of service agreements for these sites,” and that can lead to the site removing the review, Dr. Pho said.

Dr. Pho says multiple studies have shown the majority of online reviews are actually positive. That’s why physicians should encourage all their patients to write one, instead of dreading it, he says. Get Social notes a 2012 report in the Journal of Medical Internet Research that found nearly half of all physicians get perfect online ratings, and Yelp reported in late 2013 that two-thirds of all reviews on its site were four- and five-star ratings.

“If you ask all your patients to rate you online, chances are those reviews in aggregate will be positive and can make negative reviews more like outliers,” Dr. Pho said.

The fifth tip stresses that a physician pursuing a lawsuit over negative ratings is a high-risk, costly, and ill-advised move. Establishing, Managing, and Protecting Your Online Reputation highlights the case of Minnesota neurologist David McKee, MD, who sued over negative online comments the son of a stroke patient posted in 2009. Dr. McKee sued for defamation, claiming the poster also made false statements to the American Academy of Neurology and the American Neurological Association. A four-year legal battle concluded with the Minnesota Supreme Court dismissing the case in January 2013.

The book said Dr. McKee’s case created a media firestorm and became an example of the Streisand effect, a term for an attempt to suppress a piece of online information that actually results in the information garnering more publicity. The term derives from a Barbra Streisand lawsuit against an organization that published an aerial photo of the singer’s house.

“Whenever McKee’s name is put into a search engine, the publicity generated by his lawsuit will be featured prominently in the search results,” Dr. Pho and Ms. Gay wrote. “By suing the patient, not only is the outcome of the suit in doubt, but he actually made the situation much worse. No matter what kind of merit you think a case might have, doctors who sue patients for online ratings are going to lose in the more influential court of public opinion. Better that doctors take some slanderous lumps online, and instead, encourage more of their patients to rate them.”

SOURCE

JOEY BERLIN

KEVIN PHO, MD 

Defendant Dennis Laurion’s Web Posting

Defendant Dennis Laurion’s Patient Complaint

Plaintiff David McKee’s Reply To Patient Complaint

Plaintiff David McKee’s Cease And Desist Letter To Defendant Dennis Laurion

Defendant Dennis Laurion’s Complaint To Minnesota Board Of Medical Practice

Plaintiff David McKee’s Complaint To Sixth Judicial District Duluth Court

Plaintiff David McKee’s Response To Minnesota Board Of Medical Practice

Defendant Dennis Laurion’s Answer To Plaintiff David McKee’s Complaint

Defendant Dennis Laurion’s Motion For Summary Judgment

Defendant Dennis Laurion’s Deposition Extracts

Plaintiff David McKee’s Deposition Testimony About Circumstances Before Encounter With Laurion Family

Plaintiff David McKee’s Deposition Testimony About Encounter With Laurion Family

Plaintiff David McKee’s Deposition Testimony About Circumstances After Encounter With Laurion Family

Plaintiff David McKee’s Deposition Testimony In Response To Questions By Marshall Tanick

Affidavits By Defendant Dennis Laurion’s Parents

Defendant Dennis Laurion’s Supplemental Motion For Summary Judgment

Plaintiff David McKee’s Motion To Oppose Summary Judgment

Defendant Dennis Laurion’s Reply Memo In Support Of Motion For Summary Judgment

Sixth Judicial District Court’s Order On Motion For Summary Judgment

Plaintiff David McKee’s Appeal Of Order On Motion For Summary Judgment

Plaintiff David McKee’s Brief To Minnesota Court Of Appeals

Defendant Dennis Laurion’s Brief To Minnesota Court Of Appeals

Plaintiff David McKee’s Reply Brief To Minnesota Court Of Appeals

Minnesota Court Of Appeals Order To Strike Portion Of Plaintiff David McKee’s Reply Brief

Minnesota Court Of Appeals Announces Decision

Defendant Dennis Laurion’s Petition For Review By Minnesota Supreme Court

Plaintiff David McKee’s Opposition To Review By Minnesota Supreme Court

Defendant Dennis Laurion’s Brief To Minnesota Supreme Court

Plaintiff David McKee’s Brief To Minnesota Supreme Court

Defendant Dennis Laurion’s Reply Brief To Minnesota Supreme Court

Minnesota Supreme Court Decision On David McKee MD V. Dennis K. Laurion

David McKee MD v. Dennis Laurion 2010

David McKee MD v. Dennis Laurion 2011

David McKee MD v. Dennis Laurion 2012

David McKee MD v. Dennis Laurion 2013

McKee V Laurion Is A Textbook Case

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