By Kenneth R. Larywon, Esq., Thomas A. Mobilia, Esq., Barbara D. Goldberg, Esq. and Gregory A. Cascino, Esq. of Martin Clearwater & Bell LLP
Practitioners have few legal avenues available to directly address negative online reviews by patients. Such reviews are shielded from liability under most scenarios, and it is typically next to impossible to have a negative review taken down, unless it can be established that it was completely false. Moreover, a mid-level New York State Appellate Court recently held that a patient’s critical online comments about treatment by her plastic surgeon are in the “public interest.”[i] Thus, under New York’s Anti-Strategic Lawsuits Against Public Participation (“SLAPP”) statute,[ii] the patient was able to seek attorney’s fees and damages resulting from the surgeon’s unsuccessful defamation action.
Further complicating matters, there are numerous ways in which negative online postings can increase a physician’s medical malpractice exposure, both as it relates to the likelihood that a dissatisfied patient will commence a medical malpractice action following a perceived unfavorable result, and the difficulty that a physician will have in defending the action at trial. Therefore, the manner in which a physician responds to a patient who has posted a negative review can be crucial in helping to avert malpractice litigation.
Much has been written about the fact that patients who feel that their physician did not treat them with respect or listen to their concerns are more likely to sue following negative outcomes. In fact, a study highlighted by the New York Times[iii] found that doctors who had never been sued were perceived by patients as being accessible, concerned and willing to communicate. On the other hand, patients reported that the most frequently sued doctors failed to treat them with respect or listen to their concerns, and that these doctors made them wait a long time to be seen but spent little time with them.
Similarly, a study by Massachusetts General Hospital found a correlation between medical malpractice claims and patient satisfaction.[iv] For every 1-point decrease in patient satisfaction scores there was a six-percentage increase in complaints and a five-percentage increase in risk management events. Conversely, as patient satisfaction increased, patient complaints and litigation decreased. Further, a study conducted by Baylor University Medical Center found that while seeking compensation for actual losses and future medical care was one motivation for commencing a lawsuit, the most commonly given reasons were the desire to make sure that a similar incident does not happen to future patients, and a patient’s need to understand how and why a negative outcome occurred.[v]
Thus, when a patient experiences an unfavorable outcome and posts about it online, the physician’s online response can be a part of the patient’s calculus in determining whether to bring a malpractice lawsuit. Such a patient likely has transferred their care to another physician by this time, and may feel more comfortable posting to an online forum than directly confronting their physician personally.
As such, the physician’s response to a negative online review may be his or her last and/or only opportunity to show the compassion and concern the patient previously perceived to be lacking. Alternatively, a patient may post about their experience simply to “get something off their chest” or to “warn others;” however, an uncaring or defensive online response by their physician might convince an otherwise litigation-adverse patient to bring a malpractice claim.
Accordingly, it is critically important to respond to a patient’s online complaints timely, respectfully and caringly. One possible approach that has been suggested is to contact the patient by telephone, and offer to meet with him or her to discuss the outcome that led to the negative review. This will enable the physician to discuss the basis for a particular treatment decision with which the patient is dissatisfied, review applicable standards of “best practices,” and/or explain the reason(s) why a particular drug was prescribed or not prescribed. Anecdotal evidence suggests that sometimes even a sincere apology (assuming no admission of malpractice is made!) can avert a lawsuit. Ideally, an expression of genuine concern and empathy by the physician may induce the patient who left the negative review to post further, favorable comments on the particular online site.
Online Reputation Management Services
If attempts to discuss the basis for a negative review with a patient are unsuccessful, utilizing an online reputation management service can be another component of a physician’s risk management strategy. Such services have developed algorithms that will promptly alert the physician to online complaints and negative reviews that might otherwise have gone unnoticed and, as far as the patient was concerned, ignored.
Moreover, these services can help the physician craft thoughtful responses which may reduce the patient’s feeling of being disrespected and ignored, and potentially avoid escalation to litigation. While the physician’s precise response will vary depending on the nature of the patient’s complaints, typically responses should involve an expression of remorse that the patient is not happy with the outcome, a genuine desire either to help address the situation or help the patient or their family understand why the negative outcome occurred, and, as noted above, an invitation to contact the physician directly to discuss their concerns offline.
A physician’s response cannot appear canned, insincere, or defensive. Furthermore, a physician cannot, under any circumstances, discuss issues related to liability, or disclose private health information as this can be a HIPAA violation (even if the patient has already disclosed this same information).[vi] And while well-intentioned physicians may be tempted to craft their own responses, the feeling of being personally attacked by a negative posting may cloud their better judgment and result in an impulsive and unproductive reaction. An online reputation management service can serve as a valuable intermediary in this instance, and provide the measured, professional response which can potentially head off a malpractice lawsuit.
The physician’s response can also impact a patient’s decision whether to bring a lawsuit in other important ways. As noted above, there seems to be a direct correlation between the number of prior lawsuits and online complaints about a particular physician, and the likelihood that a dissatisfied patient will commence their own lawsuit. Such a patient may be more likely to file a lawsuit because they feel that the shared common experiences and beliefs of other patients validate their opinion that their physician committed malpractice. Whether or not it is true, they may feel that because their physician treated other patients poorly he or she must be incompetent and their own unfavorable result must be the result of malpractice.
Such patients may also feel that by bringing a lawsuit they are performing a public service by “exposing” their physician’s shortcomings and taking steps to prevent what happened to them from happening to other patients. These feelings of “seeking justice” may be exacerbated where a patient sees that their physician has responded poorly to other patients’ online complaints; likely because the physician took it upon himself/herself to respond directly and did so in an emotional manner.
For most physicians, their patients overwhelmingly have a positive view of their interactions. The silent content majority, however, is much less likely to take the time to post an online review, thereby allowing the few negative reviews to skew the overall results. Reputation management services prompt all patients to review their treatment. This makes the review process much simpler, which greatly increases participation by the satisfied patients, thereby diluting any negative reviews.
Online forums and complaint boards may also serve as a means for malpractice lawyers to try and solicit clients. While the rules of professional responsibility prohibit direct solicitation, malpractice attorneys may use indirect methods to sign up new clients, especially where an attorney has already sued the same physician. For example, another client who is suing or successfully sued a physician may recommend their malpractice attorney for current and former patients who feel that they were treated improperly. We have seen this situation play out numerous times, especially for physicians who practice in high risk fields and who treat patients who have been unable to obtain relief for complex medical conditions from several other doctors.
If a patient does discover these forums but sees that other patients have overwhelmingly left positive reviews and that the physician has responded in a sincere and non-defensive manner to other complaints, the patient may view the physician more favorably and therefore be less likely to commence a lawsuit. Therefore, an appropriate response has the double benefit of reducing both the exposure and the potential impact of prior complaints.
Potential Impact on Physician at Trial
An online reputation management service can also help a physician’s defense at trial. As a general rule, patients cannot introduce evidence regarding unrelated lawsuits involving other patients. A physician’s written response to a patient’s online complaint, however, might be admissible at that patient’s malpractice trial as a party statement. Thus, while it is important that physicians avoid any mention of liability issues in their responses, it is just as important that their responses not come off as defensive or uncaring. A proper response portrays the physician in the most positive light possible, and needless to say a patient’s malpractice attorney would never want to read such a response to a jury.
Moreover, while trial judges will instruct jurors that they cannot perform their own research or conduct online searches regarding any of the parties, these instructions are, unfortunately, not always followed.[vii] Utilizing a reputation management service reduces the likelihood that jurors will find negative reviews and complaints about a physician and will blunt the impact that any such reviews can have on their opinion regarding the physician.
Conclusion
Online reputation management services can have several important benefits for physicians in both avoiding and defending malpractice actions and should be considered an important risk management tool.
We encourage our policyholders to contact the MLMIC Legal Department with any questions relating to negative online reviews. Additionally, MLMIC offers a Continuing Medical Education (CME) program entitled “Managing Your Social Media Presence,” which addresses this topic and offers one CME credit.
[i] See Aristocrat Plastic Surgery, P.C., v. Silva, 2022 N.Y. Slip Op. 03311 (1st Dep’t May 19, 2022)
[ii] See New York Civil Rights Law 70-a and 76-a.
[iii] Bad Bedside Manner or Medical Malpractice, The National Law Journal, March 25, 2021, found at https://www.natlawreview.com/article/bad-bedside-manner-or-medical-malpractice
[iv] Patient Satisfaction: Your Best Defense Against Litigation; The Physicians Report, found at https://www.phyins.com/magazine/patient-satisfaction-your-best-defense-against-litigation#:~:text=Research%20conducted%20at%20Massachusetts%20General,percent%20increase%20in%20riskmanagement%20events
[v] Communication gaffes; a root cause of malpractice claims; Proc Bayl. Univ. Med. Cent, 2003 Apr; 16(2), found at https://www.ncbi.nlm.nih.gov/pmc/articles/PMC1201002/
[vi] See 42 U.S.C. 1320d-6(a)(3)
[vii] Similarly, it is not uncommon for jurors to conduct internet searches on the attorneys representing the parties.
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