Platforms like Google, Healthgrades, Vitals, and Yelp present the public with information. Information about their health, information about their potential physicians, and information about their local healthcare systems. These platforms exist to educate the public. Overall, they succeed.
Unfortunately, their popularity has increased the frequency physicians and dentists are defamed online. As is the case with most good things in healthcare, bad apples spoil the pie. And there’s no reliable way of preventing non-patients from abusing the system. A few notable examples that we’ve helped our members navigate in the past…
An ex-employee posts a fake “testimonial” about a physician who previously employed him.
A former spouse publicizes sensitive information about a physician’s home life.
A competitor trying to carve an edge in a tight market spreads lies about an established rival.
And these are just a few. Such testimonies may appear fraudulent to you and your staff, but in the eyes of prospective patients, real reviews and fake reviews are indistinguishable. This is because they do not know you – not yet. Their perceptions are colored by what they find online.
If you’ve found this article, it is likely you are acquainted with these problems. You may be navigating these issues now.
So – let’s waste no more time. Let’s talk solutions. When a doctor is defamed online, what can he do to mitigate the damage? How does he reclaim control of the narrative? We’ll start by discussing the solution physicians often consider first: litigation.
First, some facts…
Suing a patient for internet defamation is expensive and time-consuming.
But the operating principle is that the time and money sunk into that venture will yield a favorable result. When you win, you’ll exit the courtroom with a substantial judgment. Or so you hope. More on that in a moment. To be clear – there are a few scenarios where suing a patient / former employee / online mischief maker makes sense.
That said – we do not endorse it. Here’s why…
Proving yourself a victim of internet defamation is hard.
Success requires you meet two conditions:
You must prove the defendant made a false statement to another person.
You must prove that false statement damaged your reputation.
Why are these conditions hazardous? The reason is simple – unpopular opinions, while unpopular, are not false. Opinions cannot be false. Let’s pretend a patient has venomously criticized your bedside manner. Or your practice’s wait times. Or some non-specific, subjective aspect of the care he received. You may have been cordial and attentive. The patient may have only been delayed a few minutes. A member of your staff may be available to corroborate. But in the end, the patient is expressing an opinion about your treatment of him. If he interprets your bedside manner as bad, there’s little you can do to “prove” his opinion is incorrect.
In this scenario, there is no objective truth to prove or disprove. You’ll spend time and money pursuing a victory that does not exist.
So – when can a doctor sue a patient for internet defamation and potentially prevail?
If the defamatory statement can easily be proven false, the doctor stands a chance. If the patient alleges you are not board-certified (and you are), proving the patient wrong is easy. If the patient alleges you charged him $15,000 for a surgery and you can prove you charged him $1,500, you can easily prove his statement is false – just be mindful not to post his actual bill online. If the patient alleges a staff member struck him as he departed the practice, video evidence will vindicate you.
The next big question – just because you might prevail in court doesn’t mean you should go to court. So, should you go to court? The answer is – it depends.
Assuming you do prevail – can the defendant scrounge together the funds to pay the judgment? If he is indigent (or even just an Average Joe), he most likely cannot. A practical reality of litigation – you can’t collect what does not exist.
Litigation requires regular contact with the defendant. In our hypothetical scenario, you know the defendant. If he’s attempted to defame you on the internet, you obviously dislike him. Would you want to see this person over and over again? Consider this carefully, because the amount of time you’ll spend in the defendant’s company is significant. This is not a speeding ticket – you cannot pass this to a lawyer and forget about it. If you intend to prevail, your participation is required. Your reputation is valuable, but don’t discount your time. If you’re serious about taking the matter to court, be prepared to spend many hours away from qualified patients who would otherwise be paying you for your services.
Lastly, and possibly most importantly – suing your former patient (or spouse, or employee) will make headlines. Before taking any action, determine how easily a prospective patient could stumble upon the defamatory post. If it is headlining the front page of Google, a response (but not necessarily litigation) may be warranted. If the defamatory post is already getting traffic, that traffic might as well include a strategically positioned (HIPAA-compliant) counter-narrative.
But if the defamatory post is hard to find, the advantage is yours. Obsessively googling and scrutinizing the post will send Google signals. Google will interpret those signals accordingly:
“This post is important. Put it on page one.”
Consider this metaphor…
If a patient comes to you with a small wound, you’ll most likely examine it, clean it, and dress it. You’ll provide the patient with home care instructions. Chief among these instructions is most likely: Do not touch the wound.
A defamatory post is like that wound. If you attempt to remove the post, whether by force of litigation or curated strategic response, you risk drawing attention to the defamatory content. If news of your intent goes public, you’ll make real world headlines as the physician who sues his patients to shut them up. Don’t expect the media to sympathize with you. Doctors make great heroes. They also make great villains. Recognize the colors you’ll be painted and anticipate the role you’ll be assigned.
Why not act against the websites that enable internet defamation?
We touched on these matters in a previous post, which can be read here:
In short, doctors have tried and failed. They failed because many of the websites they tried to sue are insulated against litigation. Specifically, they are protected by Section 230 of the Communication Decency Act. Section 230 is a federal law which makes it impossible to sue a web-based platform for defamation. If the doctor can identify the author of the post, he can sue the author.
But “if” is the biggest two-letter word in the English language.
That “if” often forecloses a doctor’s chances of suing successfully. Most malicious entities are smart. They post anonymously. If the doctor cannot identify the person responsible for publishing the defamatory post, his case is toothless.
In conclusion – litigation is a potential solution, but in most scenarios, not advisable. It is expensive, conditional, labor and time intensive, and not guaranteed to yield positive results even if you prevail.
It is only viable when you can prove the defamatory statements are false.
And it is only worth pursuing if the defendant has enough assets to fuel a substantial settlement.
So – if litigation isn’t a reliable method of dealing with internet defamation, what is?
Fraudulent online posts are most damaging when they exist in a vacuum. If the only patient reviews attributed to your name are fraudulent and unflattering, your online reputation will suffer. There is no counter-narrative for patients to consider. But if a negative post is surrounded by favorable (or even neutral) reviews, the impact of that one bad review is diminished.
Build a stockpile of real reviews from real patients you know and trust. Most patients understand that you cannot make everyone happy. They will expect to find a few negatives. If they cannot, they may assume you are working the system. What matters is that overall patient sentiment is favorable. To prove our point, Google an entity you like and respect – an artist, a writer, a celebrity, another physician. Examine the feedback they have received. No one is exempt from criticism.
Invite your patients to give you feedback. The potential rewards outweigh the risks – assuming you’re a competent physician. Remember – suing a patient makes news. Asking your patients for online feedback is not newsworthy. But that strategy is more likely to help you control your online reputation.
Medical Justice has been protecting physicians and dentists from threats such as defamation since 2002. We recently launched three new product offerings – Prospective Core, Prospective Impact, and Prospective Primer. Each expands the potency of our current Medical Justice programs – combating online defamation is something all three do well. Many of our member physicians and dentists have already benefited from these new programs.
And best of all, they are cost-effective. Schedule your consultation below to learn how we put doctors in control.
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Jeffrey Segal, MD, JD
Chief Executive Officer and Founder
Dr. Jeffrey Segal, Chief Executive Officer and Founder of Medical Justice, is a board-certified neurosurgeon. Dr. Segal is a Fellow of the American College of Surgeons; the American College of Legal Medicine; and the American Association of Neurological Surgeons. He is also a member of the North American Spine Society. In the process of conceiving, funding, developing, and growing Medical Justice, Dr. Segal has established himself as one of the country’s leading authorities on medical malpractice issues, counterclaims, and internet-based assaults on reputation.
Dr. Segal was a practicing neurosurgeon for approximately ten years, during which time he also played an active role as a participant on various state-sanctioned medical review panels designed to decrease the incidence of meritless medical malpractice cases.
Dr. Segal holds a M.D. from Baylor College of Medicine, where he also completed a neurosurgical residency. Dr. Segal served as a Spinal Surgery Fellow at The University of South Florida Medical School. He is a member of Phi Beta Kappa as well as the AOA Medical Honor Society. Dr. Segal received his B.A. from the University of Texas and graduated with a J.D. from Concord Law School with highest honors.
In 2000, he co-founded and served as CEO of DarPharma, Inc, a biotechnology company in Chapel Hill, NC, focused on the discovery and development of first-of-class pharmaceuticals for neuropsychiatric disorders.
Dr. Segal is also a partner at Byrd Adatto, a national business and health care law firm. Byrd Adatto was selected as a Best Law Firm in the 2021 edition of the “Best Law Firms” list by U.S. News – Best Lawyers. With decades of combined experience in serving doctors, dentists, and other providers, Byrd Adatto has a national pedigree to address most legal issues that arise in the business and practice of medicine.
It’s unfortunate that when people attempt to malign a physician’s reputation they often cannot be properly chastised, but common sense says that we should not strike out strongly if the result will be more painful to the physician. Chest la vie
I read your posts as they come in, but this one seemed a bit stretched.
How doctors “CRUSH” lies online. From the article, I got:
1) Don’t sue a patient that lies
2)Don’t attract attention to lies online
3)Don’t go after the content provider who hosts the lies
4) Continue to slowly and methodically gain feedback and reviews, to slowly and methodically counter lies if they are made.
All things true, but “Crush” may have been an overstatement. Maybe “Dilute” would have been better