EPs Fight Frivolous Lawsuits, Push for Tort Reform
Emergency Medicine News
December 2009 – Volume 31 – Issue 12 – p 1, 7, 8
By: Jeffrey Segal, MD, JD, FACS
Emergency Medicine News
December 2009 – Volume 31 – Issue 12 – p 1, 7, 8
By: Jeffrey Segal, MD, JD, FACS
Elon Law Review
2012, Spring
By: Jeffrey Segal, MD, JD, FACS, et al.and Michael Sacopulos, JD
What happens when a client – a defendant – threatens violence? The pressure of litigation can push a defendant over the edge. Even professionals, who are calm under pressure, lose their cool. Once an attorney believes his client might embrace violence as a means to an end, what obligations, if any, are triggered? And is the attorney liable for his client’s violence?
Imagine this scenario: A seasoned medical malpractice plaintiff’s attorney accepts a client presenting with a marginal professional liability case. This attorney generally screens cases carefully. This case is attractive because he calculates significant damages. His enthusiasm is tempered by paltry evidence of a breach of standard of care or causation. On balance, it’s a weak case. The plaintiff’s expert has shaky credentials, but is ready make the case for liability.
The defendant is a talented doctor, but emotionally volatile. He reacts to the summons with rage; smoke erupting from his ears. He cannot believe anyone would have the nerve to sue him. The case against him starts percolating through the legal system. The defendant’s rage builds.
The plaintiff’s attorney picks up on this volatility. He believes a jury might punish the doctor for his demeanor. His weak case just got stronger – a lot stronger.
The doctor defendant sends his defense attorney an email. He cannot believe his evolving litigation. Words such as “travesty, nightmare, horror, and injustice” are sprinkled throughout. He suggests that if he had a gun (which he does not) he might even kill the plaintiff’s attorney. The defense attorney is concerned, but does not believe anyone is in imminent danger. Yet.
A few months later, the plaintiff’s expert is deposed. The defendant takes his seat at the table, listening in silence for three hours. As the expert leaves, the defendant directs a verbal rant at the expert. The defendant then pushes him. No one is injured. But the expert is shaken up.
The defense attorney continues to have nagging doubts about the defendant’s emotional state. He questions the safety of the plaintiff’s attorney and/or expert. The defense attorney urges his client see a psychiatrist. This request falls on deaf ears.
Complete article – and legal analysis – continues in Elon Law Review, Spring, 2012. pp55-70.
Journal of Medical Internet Research
2012, vol. 14, issue 2
By: Jeffrey Segal, MD, JD, FACS, et al.
Download the PDF
Journal of Medical Practice Management
2012, May/June
By: Jeffrey Segal, MD, JD, FACS
The world has changed. Patients, now euphemistically called consumers, head to the Internet before choosing their doctor. In 2012 there are over 80 doctor rating sites inviting patients to post their experiences. These posts, in aggregate, do have an effect on business. Managing one’s reputation (particularly a doctor’s online presence) has never been more critical.
The problems associated with doctor review sites are well documented. First, most posts are anonymous, so it is impossible to determine whether the post was authored by a real patient, or someone posing as a patient. Who would pose as a patient? Someone with an axe to grind. A disgruntled employee. A competitor. An ex-spouse. Even an online reputation management company promising to “fix” a problem for a fee – a problem that company created as an excuse for your business.
Next, if there’s a wisdom of the crowds, there’s no crowd. The average review site has 0-3 reviews for any given doctor. The average doctor sees anywhere between 1,000-2,500 patients a year. This is a big gap. In general, the sampling on sites is not representative of a doctor’s practice.
In the U.S., the antidote to offensive speech in the U.S. is more speech. But, doctors cannot post the medical record on a web site to correct a misleading account. Doctors are foreclosed from responding because of HIPAA and state privacy laws.
Good medicine is not always popular. Patients sometimes request antibiotics for viral syndromes. They may ask for more pain medication than the doctor believes is necessary. The list of unrequited patient expectations is long. An unhappy patient with a mouse and broadband connection can create significant reputational damage.
The Internet is also a double edged sword. The Internet can promote one’s practice. Doctor reviews are weighted heavily by the major search engines. Doctors who invite their patients to post reviews – and have many reviews – can control the “real estate” on page one of organic searches. More on that shortly.
A Bad Review. What Now?
It’s impossible to have perfect scores forever. A bad review is inevitable. First, don’t over-react. Read that again. Give it perspective.
You can’t make everyone happy. The public at large knows that. A simple opinion about customer service is not defamatory. If patients want to write about poor bedside manner, a gruff front office, rotten parking, or long wait times in the waiting room – let them. That is fair game. And often it is the only way to get reasonable feedback on what your patients perceive, and how to fix problems.
Here’s a documented review about the Ritz Carlton. The Ritz Carlton provides excellent service and has a stellar reputation. And everyone knows that.
This hotel is a genuine piece of crap! I have stayed at some bad hotels and while this is not the worst I have ever seen it is pretty bad! This has to be the worst Ritz-Carlton in existence. I would suggest burning this hotel down before staying at it. The rooms suck, there is no gym or pool. …. The wall paper was falling off the walls in my room and my friends were staying in a room where they received a breakfast menu from housekeeping that had the pages stuck together by chewed bubble gum!…This place is horrible, I would suggest one of the trendy boutique hotels in Old Montreal! 1
Ouch.
If your rating is, in general, positive, there is often little reason for concern. Many believe that a collection of excellent ratings punctuated by a couple of bad ratings is perceived as being more credible than uniformly good ratings. In other words, a couple of negative ratings (among many positive ratings) may actually have the unintended consequence of increasing the positive perception of positive ratings.
Next, if the review is entirely unfair or inappropriate, determine if it violates the site’s Terms of Use. Many sites have formulated rules constraining how reviewers should behave. For example, on many sites, (1) reference to drugs or alcohol; or (2) abusive, objectionable, inflammatory language is prohibited. If the posting violates the Terms of Use, you can submit a respectful letter to the site, drawing their attention to the language of the post. They are not obligated to take it down, but might be persuaded to honor their Terms of Use policy. Civil discourse in a respectful tone is more likely to be effective than inflammatory threats. Some sites will respond to a persuasive tome. Others will not. Each site is different.
If you have an idea who wrote the post, it might be productive to reach out to that patient. Recently, a dentist was graded an “F” by an ex-patient. The poster alleged the dentist “over-diagnosed” the number of cavities; the implication being the dentist was only concerned about money. This ex-patient went to another dentist – who might have added gasoline to the then nascent fire. The original dentist looked at the chart to make sure he had not made any diagnostic mistakes. He had not.
The dentist wrote the patient. Selected excerpts follow:
A patient brought to my attention a review you recently wrote. We really want all of our patients to have a positive experience with our office and it’s clear you were not satisfied. I respect everyone’s right to voice their opinion. But, your review stung.
I reviewed your chart and saw that we diagnosed four cavities and recommended treatment. From the review, I see you went for a second opinion and that dentist disagreed with my diagnosis. No healthcare practitioner gets it right 100% of the time and I am no exception. That said, I used your review as an opportunity to double check the record to see if I missed anything. I also had the record reviewed (confidentially) by 2 peers. Each agreed with my diagnosis.
It was never my intention to disappoint you and for that please accept my apology. Given the information above, I would appreciate it if you would amend or remove the review you posted. It’s ultimately your decision and please receive this as just a request. I would be happy to speak with you directly about this. And if there is something I can do to reverse your initial impression of our office, I would welcome the chance to do so.
The patient responded positively to this overture – and did indeed update the “grade” to an “A.”
Pro-Actively Managing One’s Online Reputation:
A negative review has impact is it’s the only review on a site. But, an isolated negative review mixed within a sea of positive ratings is diluted. The literature suggests most patients are happy with their doctors. Tehrani, et al.2 published an article summarizing findings of validated online patient satisfaction surveys. They concluded the great majority of patients reporting their satisfaction online are highly satisfied with their outpatient medical care. The overall patient satisfaction rating was 9.28 on a scale from 1-10. Of the 14,984 ratings, 10,510 (70.1%) were 10s and another 2,291 (15.3%) were 9s. By deputizing one’s patients to post reviews, honest feedback is obtained, customer service issues can be remedied, and the inevitable negative review will generate less anxiety.
Coaxing one’s patients to post feedback is a challenge. There are over 80 doctor review sites. No matter how well intended, patients often forget about the request when they get home. Or, if they post, they may post to sites that have zero impact on your online reputation. One service that addresses this dynamic is e-Merit3. There, patients are provided an e-Tablet device (such as an iPad) in the office to anonymously provide feedback via survey. With patients’ permission, their comments can be uploaded to various doctor rating sites. The response rate is dramatically better than relying on patients remembering to participate when they leave your office. Further, the system can identify customer service challenges, ideally solvable, before they mushroom into visible reputational problems.
Other solutions touted by reputation management service providers include: (a) creating webpages with “competing” positive content to drive negative content to deeper pages on search engine results4; and (b) “bread and butter search engine optimization5.
What Not To Do?
Suing a website or patient for defamation should rarely, if ever, be pursued. There are exceptions, of course. In December, 2011, an Arizona jury awarded a $12 million judgment to two doctors after a local jazz singer posted critical Internet reviews of their practice and aired multiple complaints to the state Medical Board. 6 But, most doctors who sue alleging online defamation do not win.
Websites, for the most part, are immune from the tort of defamation. Section 230 of the Communication Decency Act, a federal law, provides review sites a safe harbor to display posts. To prevail in a suit for defamation, one must sue the actual poster. That poses more challenges. The vast majority of posts are anonymous. One would obtain a “John Doe” subpoena to identify the IP address of the source of the post. That entails significant work, a healthy amount of cash, and a lawsuit – alleging defamation – that is likely to prevail on the merits. This qualifier, “likely to prevail on the merits” is daunting. To prevail in such a lawsuit, the doctor must prove that the poster uploaded a false statement which damaged his reputation. Statements of opinion do not count. And truth is a defense to a charge of defamation. If a patient states “The doctor communicated poorly and did not seem to care about me one iota” – that is treated as opinion, and not actionable. If a patient states that Dr. X is not even Board certified, and he is indeed board certified, that does qualify as a false statement, and is arguably actionable. Most online rants are catalogued as “opinion.”
While a given review might qualify as legal defamation, a doctor should resist the reflex to sue. A lawsuit will convert an obscure item on a Google search into page one news. That is, a lawsuit might have the unintended consequence of publicizing the post even more than before. Further, the legal process moves slowly and is unpredictable. There are times when a lawsuit is the only tool left to achieve a reasonable long-term result; but, it should be the exception, and not the rule.
Other Details:
Rounding out odds and ends:
Summary:
Online reviews do impact a doctor’s business – for better and for worse. In general, more reviews are better. Most reviews are either positive or constructive. An isolated negative review generally has limited impact, as long as it is diluted by a sea of positive reviews. If a significant number of reviews are negative, attention should be paid to analyze the content of such criticism, and whether it can be remedied. It often can.
References:
1 Virtual Tourist. The Ritz Carlton Montreal. http://www.virtualtourist.com/hotels/North_America/Canada/Province_of_Quebec/Montreal-906413/Hotels_and_Accommodations-Montreal-The_Ritz_Carlton_Montreal-BR-1.html (accessed January 16, 2012).
2 Tehrani A, Feldman S, Camacho F, Balkrishnan R. Patient satisfaction with outpatient medical care in the United States. Health Outcomes Research in Medicine. November 2011. 2: e197-202.
3 www.emerit.biz (accessed January 16, 2012).
4 www.reputation.com (accessed January 16, 2012).
5 http://reputationmanagementx.com (accessed January 16, 2012).
6 Arizona Republic. Scottsdale doctors awarded $12 million in defamation case. http://www.azcentral.com/community/scottsdale/articles/2011/12/16/20111216scottsdale-doctors-win-lawsuit.html (accessed January 16, 2012).
Reprinted with Permission from The Journal of Medical Practice Management May/June 2012, Copyright 2012, Greenbranch Publishing, (800) 933-3711; www.mpmnetwork.com
A note from Medical Justice Services, Inc…
There are many third-party marketing vendors that help doctors navigate these waters safely. A word of caution – not all of these third-parties are HIPAA-compliant, so when investigating, ask the right questions. One physician-based online reputation management service, eMerit, has our endorsement. To learn more about their take on doctor reputation management, visit eMerit.biz.
Florida Medical Magazine
By: Jeffrey Segal, MD, JD, FACS, et al.
Before we dive in, some fast advice. Suing a patient for defamation is challenging. It will likely propel you and your practice into the spotlight – and not in a good way. If you are a doctor who is considering suing a patient for defamation, schedule a consultation with our Founder and CEO, Jeff Segal, MD, JD. We can help you determine the best course of action for your circumstances. And for more content specific to doctors combating internet defamation, read: Defeating Internet Defamation: How Doctors are Crushing Lies Online.
Dog bites man never makes the newspaper. Man bites dog is news.
Doctors suing patients (and their families) is news.
Several cases are percolating through the legal system. In each, a doctor sued a patient (or patient’s relative) for online mischief. Doctors are starting to prevail in the legal system. Whether this is a useful strategy for all doctors will be discussed further down. First the details.
In Carlotti v. Petta, Dr. Carlotti, a cosmetic surgeon, successfully sued his former patient – receiving a jury verdict of $12 million in December 2011. In 2007, Albert Carlotti, performed a number of procedures on Ms. Petta, a singer, including a rhinoplasty.
To say Petta was unhappy would be an understatement. She launched a website which claimed, among other things, that Dr. Carlotti was not board-certified. Records showed he was board certified by the American Board of Oral and Maxillofacial Surgery.
She claimed Carlotti was being investigated by the Arizona Board of Medical Examiners. Carlotti did not have any disciplinary record with the Arizona Board.
Petta also allegedly obtained phone numbers for some of Caroltti’s patients, calling them, making the same allegations.
Petta’s actions took a toll on the practice. “I was dealing with somebody who had the intent of destroying us professionally, personally and on every level. I went from a very successful surgeon to pretty much out of business.” Carlotti considered relocating to another country. He was forced to sell his home. And he shed over 30 pounds due to stress.
As a last resort, Carlotti sued Petta for defamation. A jury listened to testimony over three weeks. They delivered an 8 figure verdict in one day. The case will likely be appealed. [Update: On January 15, 2015, the Arizona Court of Appeals vacated the lower court judgment noting “the evidence presented [did] not support such an excessive award of general damages.” The Court of Appeals mandated a new trial to address both liability and damages.]
In McKee v. Luarion, Dr. McKee, a neurologist, sued his patient’s son for online defamation. In April, 2010, McKee was reviewed on a doctor rating site.
“My father spent 2 days in ICU after a hemorrhagic stroke. He saw a speech therapist and physical therapist for evaluation. About 10 minutes after my father transferred from ICU to a ward room, Dr. David C. McKee walked into a family visit with my dad. He seemed upset that my father had been moved. Never having met my father or his family, Dr. McKee said, “When you weren’t in ICU, I had to spend time finding out if you transferred or died.” When we gaped at him, he said, “Well, 44% of hemorrhagic strokes die within 30 days. I guess this is the better option.” My father mentioned that he’d been seen by a physical therapist and speech therapist for evaluation. Dr. McKee said, “Therapists? You don’t need therapy.” He pulled my father to a sitting position and asked him to get out of bed and walk. When my father said his gown was just hanging from his neck without a back, Dr. McKee said, “That doesn’t matter.” My wife said, “It matters to us; let us go into the hall.” Five minutes later, Dr. McKee strode out of the room. He did not talk to my mother or me. When I mentioned Dr. McKee’s name to a friend who is a nurse, she said, “Dr. McKee is a real tool!””
The patient’s son sent letters to the hospital and assorted medical associations making the same claims. McKee sued the son in Minnesota court. The case was thrown out on summary judgment. Truth and opinion are two defenses to allegations of defamation. The judge concluded the review contained statements of opinion, true statements, and vague statements. Accordingly, the judge ruled against the doctor. McKee appealed his case.
January 23, 2012, the Minnesota Court of Appeals overruled the lower court, sending the case back to be heard by a jury. The court ruled that many of the statements were factual assertions – not opinions. And many of the statements were capable of harming the doctor’s reputation. For example, the following statements suggested the doctor was rude, insensitive, and morbid: the doctor had to “spend time finding out if [the patient was] transferred or died”; “44% of hemorrhagic strokes die within 30 days. …this is the better option”; and “[It] doesn’t matter” that the patient’s gown did not cover his backside. So, the case lives on.
In the past, some doctors have tried to sue various doctor review sites. But, such sites are immune from most litigation. 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. That said, if a doctor can identify the actual author of a defamatory post, he can sue that person. In the cases above, the doctor was able to easily identify the author. More often, it can be challenging – as most posts are uploaded anonymously.
Even anonymous posts can be tagged to a specific person. Patients often leave digital footprints. Their post emanates from a specific Internet Protocol address. Many online sites and/or Internet Service Providers keep date stamped records tying an Internet Protocol address to online activity. Doctors can file “John Doe” lawsuits making the case for defamation. If they can demonstrate they have a prima facie case asserting defamation, they can file a subpoena to track down the Internet Protocol address – getting closer to determining the identity of the poster.
So, is it a good idea to sue a patient for defamation? In most cases, the answer is no.
First, proving defamation is not easy. To prevail, you must prove that the defendant made a false statement to another person; and the statement harmed one’s reputation. If the statement was true, you will lose. If the statement was an opinion, you will lose. If the patient writes she does not like your bedside manner and you communicate poorly, that will likely be construed as opinion. And opinion is fair game. For a deeper explanation here, consult our follow-up article about doctors tackling online defamation.
What type of statement might be considered defamatory? One which is easily proven to be false. For example, “Dr. X is not board certified” – when he is. Or “Dr. X charged $15,000 for the surgery” when the documented price was $3,500.
Next, litigation can be capricious and expensive. Even if you win a judgment, the defendant might have no assets. A Pyrrhic victory.
Most importantly, suing a patient brings attention to the nasty post. If that post could only be located on a Google search buried on page 3, suing the patient is the most effective way to move the post to page 1 – an undesirable outcome. In other words, suing for defamation might increase the damage caused by the post.
This phenomenon is known as the Streisand effect. In 2003, Barbara Streisand attempted to suppress photographs of her residence appearing online. She sued a photographer, Kenneth Adelman, and Pictopia.com for $50 million hoping to have an aerial picture of her mansion removed from a publicly available collection of 12,000 California coastline photographs. The photographer said he took shots of beachfront property to document coastal erosion. Before Streisand filed her lawsuit, “Image 3850” was downloaded from Adelman’s website less than ten times (2 of those times were from Streisand’s attorneys). After the lawsuit was filed, more than 420,000 people visited the site the following month. Streisand did not prevail.
The best way to prevent damage from isolated online posts is by accumulating real reviews from confirmed patients. This will dilute whatever effect the negative post has. The public understands you cannot make everyone happy 100% of the time. Even the Ritz Carlton gets an occasional bad review. If you only have great reviews, the public will likely discount the authenticity of such reviews. If there’s an occasional bad review, the public will perceive all reviews as authentic.
Don’t be afraid to invite your patients to give you feedback. The literature suggests most patients are happy with their doctors. Tehrani, et al.[1] recently published an article summarizing findings of validated online patient satisfaction surveys. They concluded the great majority of patients reporting their satisfaction online are highly satisfied with their outpatient medical care. The overall patient satisfaction rating was 9.28 on a scale from 1-10. Of the ~15,000 ratings captured, 10,510 (70%) were 10s and another 2,291 (15%) were 9s.
Suing a patient makes news. Pre-emptively asking your patients for online feedback is not remotely newsworthy. But, that strategy is more likely to help you control your online reputation. Request a complimentary consultation. We are equipped to neutralize patient disputes and help you protect your reputation. And for more content specific to doctors combating internet defamation, read: Defeating Internet Defamation: How Doctors are Crushing Lies Online.
Jeffrey Segal, M.D., J.D., is founder and CEO of Medical Justice. Medical Justice is a physician based organization focused on keeping doctors from being sued for frivolous reasons. In addition, Medical Justice helps doctors control their online reputation.
We provide qualified applicants with free review monitoring for 6 week. Reports delivered bi-weekly.
Medical Justice Founder and CEO, Jeff Segal, MD, JD, provides consultations to doctors in need of guidance.
Our Executive Team walks with our member doctors until their medico-legal obstacles are resolved.
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. With over 50 combined years of 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.
OFPSA
2011, Fall
By: Jeffrey Segal, MD, JD, FACS, et al. and Michael Sacopulos, JD