We all wish 100% of our patients were satisfied with their outcomes 100% of the time. Nobody will beat us up harder than we beat ourselves up. Still, all practices have patients where the relationship soured. Your paths parted. They either ended up in a different practice. Or no practice at all. But they were out of your practice.

Then…

You hire a new marketing firm. They outline a marketing campaign with social media, blitzing your past patients and prospects with emails and text messages. They will be using a list transferred from your practice. And hopefully, the agency was deputized with a HIPAA Business Associate Agreement.

If the list is not filtered, the agency will end up marketing to these few patients who have moved on. Painful memories will be triggered. An old scab will be ripped off. And the friction that had abated may be rekindled.

How?

Online reviews and social media.

The patient will recount their unhappy experience for all to read. And they may even add a statement that the practice could not be bothered to avoid marketing to the unhappy few.

This is an unforced error.

You do not have to market to everyone. You want to market to those who are likely to need or use your services. If someone has moved on because they were unhappy, you can attempt “service recovery” near-term. If that fails, it’s a fait accompli.

Do yourself a favor; do this patient a favor. Remove their name from any future marketing list. There is no upside to peppering their inbox with stories of other happy patients.

What do you think?

Medical Justice provides free consultations to doctors facing medico-legal obstacles. We have solutions for doctor-patient conflicts, unwarranted demands for refunds, online defamation (patient review mischief), meritless litigation, and a gazillion other issues. If you are navigating a medico-legal obstacle, visit our booking page to schedule a free consultation – or use the tool shared below.

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 2023 edition of the “Best Law Firms” list by U.S. News – Best Lawyers. 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.

We published a piece in 2021 about doctors who purchased fake online reviews from individuals in Bangladesh. Kathryn Dean was able to connect the dots between numerous businesses across the country who were reviewed by the same people.

Ms. Dean connect[ed] the dots between reviewers who posted reviews about a mortgage company in California, a dog walker in New York, a motel in New Zealand, a restaurant in Florida, AND an SEO company. Oh, and other “reviewers” coincidentally visited the same businesses and posted reviews. Imagine the odds. And physicians [we]re participating.

Fast forward to a press release from the NY Attorney General’s Office in October 2023.

Attorney General James Secures $100,000 from Manhattan Doctor Who Manipulated Online Reviews. Dr. Mark Mohrmann and His Wife Suppressed Negative Reviews and Obtained Fake Positive Reviews for His Orthopedic Practice.

And a parallel piece in the NY Times. Fake Reviews are Rampant Online. Can a Crackdown End Them?

The NY Attorney General’s Office published:

An investigation by the Office of the Attorney General (OAG) into Dr. Mark Mohrmann and his practice, Highline Orthopedics, found that he and his wife worked together to suppress negative reviews and artificially inflate positive reviews of his practice on numerous websites, including ZocDoc, Google, Yelp, Healthgrades, Vitals, Md.com, RateMds.com, and the Better Business Bureau. Fake online reviews are deceptive and a violation of New York’s business laws. As a result of today’s agreement, Dr. Mohrmann and his wife are required to continue to take down all of the fake positive reviews online and Dr. Mohrmann must pay $100,000 in penalties.

The settlement agreement went into detail. Excerpts are below:

Between 2017 and 2021, with assistance from Wife, staff, paid contractors, and others, Respondents procured hundreds of fake reviews, employing several different tactics.

One tactic was to ask friends, family, and employees to leave positive reviews for him on ZocDoc, Google, Yelp, and Healthgrades, regardless of whether they were patients of Respondents.

This method was particularly important for Physician in manipulating his ZocDoc profile because only registered ZocDoc users are able to post reviews.

For example, following the negative ZocDoc review described above in paragraph 8 above, Physician instructed Wife to post a positive ZocDoc review using her maiden name, noting that it would “push down the bad review.”

Wife also procured fraudulent positive reviews from contractors who advertised review-related services on platforms such as Fiverr.com (“Fiverr”) and Upwork.com (“Upwork”).

From 2017–2019, Wife, with Respondents’ knowledge, engaged several different contractors through Fiverr and Upwork to post fake positive reviews for Respondents. Respondents determined when they needed new positive reviews and, whenever the time came, directed Wife to procure them. Wife engaged in the day-to-day operations of finding, hiring, and directing the contractors, and Respondents paid the contractors.

From September 2017 – September 2019, Respondents spent $4,000-$5,000 on procuring fake reviews.

In 2019, Physician became estranged from Wife and started communicating directly with the one of the contractors to request removal of negative reviews.

As a result of Respondents’ efforts to manipulate the reviews on the platforms described above, patients searching for orthopedic treatment were misled by ratings and reviews on ZocDoc, Google, Yelp, Healthgrades, Vitals, Md.com, RateMds.com, and the Better Business Bureau, and Adviise that did not accurately reflect the aggregate experiences of patients who had been treated by Physician.

Instead, patients were misled by fraudulent positive reviews that had no bearing on the level of service and care provided by Respondents and were disappointed when their experience with Respondents did not reflect the type of service and care that had been described in the fraudulent reviews.

Respondents’ conduct denied such patients the opportunity to evaluate them based on a complete and accurate assessment of other patients’ experiences and, instead, enticed them to book appointments with manipulated online profiles.

New York General Business Law (“GBL”) Article 22-A prohibits deceptive acts or practices in the conduct of any business, trade or commerce in this State. GBL § 349.

GBL Article 22-A also prohibits false advertising in the conduct of any business, trade or commerce or in the furnishing of any service in this State. GBL § 350.

New York Executive Law § 63(12) prohibits persons or business entities from engaging in repeated fraudulent or illegal acts or otherwise demonstrating persistent fraud or illegality in the carrying on, conducting, or transaction of business.

The OAG finds that the practices described above constitute repeated violations of GBL §§ 349 and 350 and New York Executive Law § 63(12).

Dr. Morhmann and his practice agreed to pay the Attorney General’s Office $100k, work to remove the purchased reviews, and not engage in similar practices going forward. He denied any wrongdoing.

Back to the NY Times article:

In an emailed statement relayed through his lawyer, Dr. Mohrmann said that “health care professionals focus on patient care and are sometimes not aware of what actions are taken by firms hired to manage online reputation or search engine optimization.” The New York attorney general’s office said that Dr. Mohrmann had “asked friends, family and employees to leave positive, five-star reviews” and that his wife had written some of the reviews.

Dr. Mohrmann’s lawyer said they were “working closely with the New York attorney general’s office and others to eliminate inauthentic reviews.”

An analysis by the Transparency Company found that half the reviews on Dr. Mohrmann’s Google Maps profile are “highly suspicious,” with many accounts connected to India, Vietnam and Britain. Dr. Mohrmann retains a rating of 4.5 on Google Maps, compared with just 2.5 stars on Yelp. (The latest Google review identified as suspicious was published one year ago.)

And recently the Federal Trade Commission proposed new rules for banning fake reviews.

Finally, it believes that targeted authority for the FTC to impose financial penalties on bad actors can be an element of a comprehensive effort to improve the consumer information ecosystem, but that any provision that authorizes the assessment of a financial penalty must be appropriately targeted in both design and enforcement at those who knowingly engage in clearly deceptive and fraudulent practices.

So, the FTC can and will dole out fines and penalties.

And Boards of Medicine can take action against licensees for false advertising and unprofessional behavior.

What’s the take home message? Make it easy to capture patient feedback. Most practices are full of happy patients. If you didn’t have happy patients, your business would dry up. They’re there. Make sure their messages appear online. And don’t purchase reviews from people you’ve never seen, particularly those on other continents.

There are probably other take home messages. I can think of 100,000 of them.

What do you think?

Medical Justice provides free consultations to doctors facing medico-legal obstacles. We have solutions for doctor-patient conflicts, unwarranted demands for refunds, online defamation (patient review mischief), meritless litigation, and a gazillion other issues. If you are navigating a medico-legal obstacle, visit our booking page to schedule a free consultation – or use the tool shared below.

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 2023 edition of the “Best Law Firms” list by U.S. News – Best Lawyers. 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.

Welcome to the internet age. Anyone can purchase a domain name and set up a website for all types of reasons.

Do we see patients putting together websites singing your praises? Nope. They may post a positive review on Google or Healthgrades. But a website devoted to your good works? I’ve not seen one.

I HAVE seen websites set up to telegraph what a charlatan the doctor is; and how he should not have a license; with pics of his handiwork. And the domain name bears an uncanny resemblance to the practice name. Oy.

What to do?

The only tools for addressing the website a disgruntled patient publishes are (a) negotiation (having the patient voluntarily remove the site and keep it down); or (b) litigation.

I’ll start with litigation, or the courts more broadly.

Litigation is possible if what the patient is writing is considered defamation. Defamation consists of false statements made to third parties damaging your reputation. Truth and opinion are defenses against a charge of defamation. For example, stating “Dr. Smith is not a board-certified neurosurgeon” could be considered defamation, precisely because Dr. Smith IS a board-certified neurosurgeon. Stating “Dr. Smith is a butcher” is not considered defamation. The former can be demonstrably proven as true/false. The latter is considered a protected opinion.

Litigation is also possible if someone has misappropriated your trademark. Typically, courts have held that gripe sites containing some indication of their nature in the domain name itself (such as yourcompanysucks.com, yourcompanyfraud.com, or ihateyourcompany.com) are permissible, provided that the site is used for criticism or commentary, rather than for commercial purposes. If a patient’s website has the look and feel of a gripe site and is not confusing the public, courts will generally leave those sites alone. But if the site incorporates your unique logo, has a domain name that is remarkably similar to yours, and is making money selling merchandise, well, you may prevail in a trademark action.

Further, if they ARE using your actual trademarked name in its domain name, you can petition an accredited dispute resolution service provider to arbitrate the matter, seeking to transfer the domain name back to you. Details about the Uniform Domain-Name Dispute Resolution Policy (UDRP) process can be found here: https://www.wipo.int/amc/en/domains/guide/ The process does not generally take much time, and it is relatively inexpensive.

To win a UDRP dispute, the trademark owner must meet three criteria:

1. The disputed domain name must be identical or confusingly similar to a trademark that the complainant owns.
2. The complainant must substantiate that the respondent does not have legitimate rights to the domain. This can go beyond registered trademark rights at times, such as verifying that the respondent has not set up a business under the disputed name and that they are not known by that name.
   It is possible that the respondent has used a particular name for several years which has created their rights to the domain name. If the similarity is purely coincidental, for example, if someone registered the same company name 20 years ago, long before you registered your company and trademark, that is just coincidental and there is no UDRP case.
3. Thirdly, the complainant must show that the disputed domain name was registered in “bad faith” and that the registration is currently being used in bad faith. Bad faith means that there is clearly intent to deceive. This involves looking at the owner of the domain name, and then investigating how the website is being used, if there are misrepresentations regarding the trademark owner, and so forth.

Finally, in some states, for example -Pennsylvania, you can try to co-opt the support of a district attorney to file charges against such a patient for online harassment.

Pennsylvania Section 2709. Harassment.

(a)  Offense defined.–A person commits the crime of harassment when, with intent to harass, annoy or alarm another, the person:

(1)  strikes, shoves, kicks, or otherwise subjects the other person to physical contact, or attempts or threatens to do the same;

(2)  follows the other person in or about a public place or places;

(3)  engages in a course of conduct or repeatedly commits acts which serve no legitimate purpose;

(4)  communicates to or about such other person any lewd, lascivious, threatening, or obscene words, language, drawings, or caricatures;

(5)  communicates repeatedly in an anonymous manner;

(6)  communicates repeatedly at extremely inconvenient hours; or

(7)  communicates repeatedly in a manner other than specified in paragraphs (4), (5) and (6).

The US Supreme Court addressed a case this past summer (2023), watering down laws such as the one referenced above.

Finally, one can negotiate with the patient to take the offending site down. The benefit to that strategy, if successful, is finality. It solves the problem now and going forward. You can either negotiate directly with the patient directly or hire a lawyer to get the job done. Most of the time, if the negotiation works, the site comes down, and new sites do not appear. It’s over.

Most patients like or even love their doctor. Even if a patient does not appreciate their doctor, they almost never engage in a scorched earth campaign, setting up a website to detail their negative experience/outcome.

“Almost never” is not the same as “never.” Such sites can be very damaging to a practice. So, understanding the tips above can help practices identify the next steps to mitigate the damage.

What do you think?

Medical Justice provides free consultations to doctors facing medico-legal obstacles. We have solutions for doctor-patient conflicts, unwarranted demands for refunds, online defamation (patient review mischief), meritless litigation, and a gazillion other issues. If you are navigating a medico-legal obstacle, visit our booking page to schedule a free consultation – or use the tool shared below.

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 2023 edition of the “Best Law Firms” list by U.S. News – Best Lawyers. 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.