When online reviews can be falsified-and even the true ones are loose cannons-how can physicians protect themselves?
David J. Goldberg, M.D., J.D.Dr. Derm is not only a successful dermatologist, but he is also very internet savvy. He tinkers with his own website, he has great search engine optimization, and he finds that many patients come to his office because of his quality of care as well as his strong internet presence. In fact, he spends 10% of his annual gross earnings on marketing, much of which is internet based. He often finds himself telling his peers how wonderful internet marketing is; that is, until one day, when he finds out that a disgruntled patient has slandered his reputation on the internet.
This patient not only accused him of poor medical practice, but also videotaped his staff drinking vodka in their nurse’s lounge. The videotape and comments have been placed on YouTube by the vindictive patient. The video has gone viral and has been seen by thousands.
Dr. Derm is concerned that this malicious act may ruin his career. The wonders of the internet now have become the curse of the internet. What can he do?
Unfortunately, because of privacy laws, when an anonymous patient places a scathing review on a website (for examples, Yelp and RateMDs.com), a physician has little recourse. Many physician review sites are as likely to misinform as they are to inform. If a patient complains, on-line, that his surgical excision opened only two days after dermatologic surgery, there is no way for anybody to know whether or not the patient has performed strenuous exercise. Equally unfortunately, the reviewers of these sites are sometimes not even patients. There are known instances of dentists being accused online, by their competitors, of being child molesters. Similarly, laudatory online comments can be written by the physician himself. The system often lacks credibility.
One way to try to work around such frivolous online statements is to have patients sign a waiver that has them promise that, in the event that they are not happy with their care, they will not post online comments to that effect. The way such contracts are enforceable is as follows.
In general, websites acting as platforms for outside commentary are not liable for defamation suits. They may, however, be subject to copyright laws. Waivers can be written to assign copyright to the treating physician. If the treating physician asks the patient to sign such a “copyright” waiver, the physician can claim ownership of any anonymous review of the practice and demand that such an online review then be removed.
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There are now examples of website posts removing such deleterious copyrighted comments. Needless to say, not all patients will agree to sign such a waiver. Some may feel such waivers are simply “gag orders.”
Alternatively, waivers can be designed to allow disgruntled patients to express their views on sites such as RealSelf.com. These sites generally take a more fair and balanced view.
The reality is that disgruntled patients are free to speak with family, friends, other physicians, lawyers, hospital peer review committees or credentialing committees. There are a wide range of appropriate places where patients can express their views.
Barring anonymous sites would be ideal; however, barring anonymous sites is unlikely to happen. At the very least, it would be helpful if internet sites could verify that the reviewer is in fact a patient of the physician he or she is criticizing (or praising).
Even more, to prevent the extreme opinion-positive and/or negative-from skewing impressions, websites should hold off from posting such reviews until they have at least 10 or more representative views. In an ideal situation, reviews would focus on topics about which a patient would be expected to be knowledgeable. These would include issues such as waiting time, appropriate parking, or being treated rudely by the physician and/or staff. Commenting on physician technique or results is an entirely different issue.
Without any signed waiver in place, Dr. Derm is in no position to stop his patient from posting the negative online comments