By Thomas N. Hutchinson and Alexandria M. Foster
Krieg DeVault LLP
In the age of immediate access to online platforms such as Google, Yelp and Healthgrades, patients are able to share physician reviews, many of which are positive but at times can be negative and potentially false. Negative reviews are damaging to a physician’s professional and personal reputation, but the way a physician responds may have a longer and far worse effect. Before a physician responds to a negative online review, he or she should consider the legal implications.
Physicians and other health care providers should know that online sites with patient reviews are immune from most litigation under Section 230 of the Communication Decency Act (the “Act”).
1 The Act was passed by Congress in part to promote the continued development of the internet and encourage free market competition.
2 The Act sets forth that “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”
3 In other words, in most instances, the Act holds online sites immune from liability for defamatory statements made by a third party.
Defending oneself has pitfalls
Physicians should also be cautious in responding to online patient reviews, to avoid an allegation of a privacy violation. Even if a patient has shared his or her own personal medical information online, physicians are still barred from disclosing patient information under HIPAA and state privacy laws. As a physician, it can be frustrating to receive a negative or false review. And yet, it is important not to defend treatment decisions online or even acknowledge that a person who shared a review was a patient. Rather than responding directly to patient reviews and becoming the target of a potential lawsuit, physicians may want to consider less-defensive strategies. Health care providers tempted to sue patients for defamation related to online reviews and postings should also be aware of Indiana’s so-called Anti-SLAPP Statute
4, which provides for prompt dismissal of litigation aimed at squelching free speech in connection with a public issue and an award of attorney’s fees.
Some alternatives for physicians
One alternative is to contact the patient by phone, or offer to meet with them in person to discuss the situation and reach a mutual understanding. If the patient was upset about a treatment decision, it may be helpful to revisit the conversation and explain best practices or standards used by your practice, hospital or other medical setting. Physicians can also take the approach of encouraging patient reviews from all patients, as increased positive reviews may lessen the impact of a few negative reviews. Finally, physicians should utilize social media and other online platforms to their advantage by keeping online profiles updated.
1 47 USCA § 230 (2018).
2 47 USCA § 230(b)(1-2) (2018).
3 47 USCA § 230(c)(1) (2018).
4 Indiana Code § 34-7-7-5. “SLAPP” is an acronym for Strategic Lawsuits Against Public Participation.
This publication should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult your own lawyer on any specific legal questions you may have concerning your situation. This newsletter may constitute advertising materials in some jurisdictions. If you forward this newsletter, please designate it as such.