Social media has created an outlet for unhappy patients to air their grievances. Subsequently, negative reviews about physicians, healthcare facilities and healthcare providers continue to be a rising phenomenon. The best reply to a negative online review is a responsible, strategically and legally written response. (See the December 10, 2015 article, "Crafting a Responsible Response to A Negative Online Review" in back issues of The LINK on LAMMICO.com).
When a responsible reply to a negative online review doesn’t work, I’m often asked whether a physician can respond with a defamation claim against the negative commentator or a chronically negative commentator. As counterintuitive as it may be, the answer is almost always, “No.” Besides the fact that defamation claims are incredibly difficult to prove, they can also become a public relations nightmare.
Identification poses the first hurdle because most people have a misunderstanding of the definition of defamation. Defamation takes on two forms: slander, which occurs when defamatory words are spoken; and libel, which occurs when the defamatory words are written. For example, if a patient makes negative, inflammatory comments about a physician’s practice during a public meeting, that physician may have a slander claim. If he makes those same comments in a post online, then he or she may have a libel claim.
Winning a defamation claim requires a party to prove several key elements of the claim. First, he or she must prove that there is a "published" statement. This means that the commentator made the statement to at least one other person. A post made on the Internet will almost always count as “published.” Second, the defamatory statement must be about the particular physician or healthcare provider who protests it. Even if he or she is not mentioned by name, if there is enough information to identify the physician, then this element is proven. Third, the statement must, in fact, be false. Accordingly, a true statement is never defamatory. Fourth, the statement is one of fact and not opinion. As one may guess, this element is the hardest to prove.
The First Amendment protects patients who express their opinions even if it is an insult. For instance, all of the following posts are protected under the First Amendment because they are opinion:
• This doctor is unimpressive.
• His staff needs to be fired.
• She is the worst doctor in the world.
• I don’t know how he became a doctor. He is a real jerk and not that smart.
Additionally, in some cases, a fifth element requires proof that the speaker was either negligent in making the statement or acted with malice, depending on the type of case. "Malice" in this context means that the speaker knew the statement was false or in reckless disregard of the truth. Finally, the physician must suffer some obvious damages that can be proven to be directly caused by the defamatory event. As evidenced above, each part of a defamation claim presents a separate and distinct obstacle that can prevent success at a trial.
Even if every element of the claim is provable, there are other defenses and counter-measures for those against whom the claim is filed that often make the pursuit of defamation claims undesirable, for example, Anti-SLAPP statutes. A SLAPP lawsuit is a “Strategic Lawsuit Against Public Participation”, protecting people who speak publicly on an issue of public interest. Across the country, several Courts have found that online reviews can qualify as speech on issues of “public interest” or “public concern” and are therefore entitled to Anti-SLAPP protection. In these cases, the healthcare provider may, in certain circumstances, end up owing attorney fees and costs to the negative reviewer!
Additionally, websites that host user-generated content and reviews like Yelp, Amazon and others, are also often shielded from liability under the federal Communications Decency Act (CDA). Section 230 of the CDA states that the provider of an “interactive computer service” is not considered the “publisher” or “speaker” of “any information provided by another information content provider.” Subsequently, these kinds of websites are not typically held liable for defamation and certain other claims.
By suing for defamation, a healthcare provider puts his or her own reputation on trial in the court of public opinion. Not only will the facts related to the negative review itself be revealed during the course of the actual trial, other embarrassing or not-so-flattering information may be publicized as well. The reality is that a defamation claim is rarely productive. The best defense is a good offense. Positive brand management on the front-end is the key to disarming a random negative comment on the back-end.