Online Reviews: Woo ’em, Screw ’em, or Sue ’em?

 

Is medicine a profession or a retail service?

Should doctors think of patients as their customers? Is medicine a retail business? Are online doctor reviews so unfair they should be ignored?

Such questions have set off a firestorm of responses from physicians nationwide on Medscape, a highly popular website published for the health care profession.

The triggering event was the February 20 publication of an article on Medscape (one of the 2,000 most-visited websites in the United States) entitled “Top Complaints Posted on Doc-Rating Websites.” To date, 75 Medscape readers have commented on the article, most of whom identify themselves as physicians. Of those, most complained about the unfairness and anonymity of online reviews on rate-your-doctor websites.

One by-product of practicing medicine in the Information Age is the constant reminder that doctors – just like restaurants, hotels and car dealers – are subject to customer reviews on the Internet. The Medscape article about this aspect of health care in the 21st century obviously touched raw nerves

Increase in customer service related complaints

Several commenters took issue with a quote by Vanguard Communications’ CEO Ron Harman King (and the author of this blog posting) that medicine has become a retail service. One online commenter identifying himself as Dr. John Foster responded, “(T)hat is why after 32 years I’m going to part-time status.”

Another commenter self-identified only as “Dr. B” responded, “The fact that 1/3rd of complaints [on rate-your-doctor websites] are about customer service [according to the findings of a Vanguard study] prove the ridiculousness of the people who are complaining. Those patients need to learn that medical offices are not – *&^%$# – fast food places where you can order your meal to go!”

A significant number complained about the inevitability of disgruntled patients who cannot be satisfied with any level of care. They make an excellent point.

Like it or not, anyone employed in any service profession today – health care providers included – can unwittingly become the target of unhappy customers complaining publicly on websites such as Yelp! and Angie’s List. Anyone wanting to complain in these venues need go only as far as a computer keyboard. And often there is little the seller and the target of complaint can do about it.

Or is there? Many Medscape readers believe that HIPAA and other privacy regulations and standards leave them helpless against online brickbats. But HIPAA is less restrictive than many believe. Moreover, the Internet transformed from a medium of one-way communication to a multi-directional, global discussion forum about, oh, 15 years ago.

Four options for responding to negative doctor reviews

The result is that doctors don’t have to ignore complaints about them on the Internet. A physician slighted by an online review – even if it’s of doubtful origin or validity – has four choices for action.

First, there two excellent options for responding after the fact. Second, one even better option avoids harsh patient reviews altogether. Third, one terribly rotten option usually makes a merely uncomfortable situation infinitely worse. They are, in that order:

• Responding directly to the review right there on the same website. The idea is not to comment publicly on any single patient’s case but to discuss general protocols and policies, such as how the front office responds when a physician falls an hour behind his or her schedule of appointments.
• Reaching out to the complaining patient privately, which many rate-your-doctor websites allow and which skirts privacy issues altogether.
• Running a customer-experience-based medical practice.
• Filing a lawsuit against the complainer.

We have covered the first three options in a previous blog posting, “Seven Steps to Better Online Doctor Reviews.” Let us now examine the fourth option in depth.

A professor at Santa Clara University School of Law in California by the name of Eric Goldman has made a career out of studying online communications and transactions. Goldman is also director of the school’s High Tech Law Institute, which monitors online legal cases and trends.

As of July 2013, Goldman had tracked 35 cases of doctors suing their patients over bad reviews with the following outcomes:

• Twenty-three cases were dismissed (including one court’s “rejection”).
• Five cases were settled.
• Five cases were still pending.
• In one case the patient was actually awarded $50,000 under what’s known as an anti-SLAPP statute, which are state laws designed to permit consumer rights of free expression.
• In another case the patient was merely issued a temporary restraining order to stay away from the doctor.

The odds of legal victory

In not one case out of 35 followed by Goldman has a plaintiff doctor won in court. Perhaps some or maybe all of the six settlements could be construed as victories for doctors, presumably because the plaintiff likely persuaded the defendant to remove his/her complaint from the review website as part of the settlement. But we don’t know because terms of settlements are usually confidential.

Bottom line, based on this sampling, at best a doctor has a one-in-six chance of any kind of legal victory, including merely getting a complaint removed.

Other professional papers have corroborated Goldman’s conclusions that patients are largely protected from such lawsuits by physicians. For example, the Digital Media Law Project, a part of Harvard University’s Berkman Center for Internet & Society, reports that 28 states have anti-SLAPP laws permitting largely unfettered reviews of doctors online, as does the District of Columbia and one U.S. territory (and by common law in two more states).

The First Amendment of the U.S. Constitution is a mighty force in our society. The consequences can be devastatingly unfair to doctors and anyone else in business for himself or herself.

Yet doctors nonetheless have choices. More importantly, doctors have voices. Perhaps no other profession has the degree of public attention and credibility as physicians. When doctors talk, people listen.

In an age where the Internet overflows with unsolicited opinion, probably the best recourse health care professionals have is to use their voices and choices frequently and wisely. In other words, don’t just sit there; say something.