Webinar: Safeguarding Your Online Reputation as a Healthcare Professional

Introduction

Speakers

Dan Powell: My name is Dan Powell. I’m the managing attorney at Minc Law. We are a law firm focusing exclusively on protecting the online reputations of businesses and individuals. I’m here with our lead litigator, Mike Pelagalli.

Topic Overview

Clients of all kinds utilize our services. Today’s talk will focus on the services we commonly provide to medical professionals. Our claims range from online defamation claims to privacy claims to cybersecurity or digital risk issues. We also deal with cyber extortion.

Today we’ll be discussing safeguarding your online presence and digital footprint, an increasingly important issue in today’s world. One of the major issues medical professionals face is negative online reviews. Today’s talk will have a particular focus on that issue.

Agenda

We’ll start with a section on the importance of reputation, generally in terms of what reputation is and why it matters to medical professionals, and more specifically, why online reputation matters to medical professionals. This is due to the enormous and increasing influence of digital footprint, search results, and online reviews in the internet age.

After discussing the importance of reputation, we’ll talk about how, as a medical professional, you should go about publicly responding to reviews. This must be done with caution due to legal and ethical restrictions, as well as practical business considerations.

Alternatively to publicly responding to online reviews, there’s the option to privately respond. This can involve appealing to the online review platform on which the review is published, invoking the terms of service of that particular platform. It can also include privately appealing to the patient directly, ranging from legal demand letters to good old-fashioned customer service relations.

We’ll also touch on a new FTC rule that can impact how you deal with these online reviews and interact directly with patients.

If you’ve attempted to publicly or privately respond to the review, and neither option is working to solve the problem or afford relief to the ongoing damages, your next consideration might be to litigate the case formally. This should only be done after a comprehensive assessment with a legal professional.

The Importance of Reputation

What is Reputation?

Dan: Reputation is an earned asset which should be jealously safeguarded. Not to be confused with character, which is who you are. Reputation is who people think you are. Reputation is vital in today’s age. What people think of you, what they think your character is, is your reputation. Reputation is both incredibly difficult to cultivate and shockingly easy to damage.

Benjamin Franklin said 200 years ago, and Warren Buffett echoed it more recently, that reputation takes a long time to build and only one bad deed to lose it. It’s something I always advise clients they must jealously safeguard. They must constantly look out for and protect their online reputation and reputation in general.

Significance of Online Reputation

More specifically, to the work we do at Minc Law, what is the significance of someone’s online reputation?

In today’s world, decisions on which product or service to purchase, where to dine, what movies to see – these purchasing decisions are all being made through direct online research by consumers. A 2020 study showed that consumers trust and heavily rely upon online reviews. Negative reviews deter potential customers, while positive reviews have the power to directly boost a business’s profitability.

Online Reputation for Medical Professionals

Mike: Does all of that apply to a medical professional’s online reputation as opposed to a consumer-based business?

Dan: Given that medical professionals are in what we consider a high-risk industry in terms of choosing who to use, what professionals to trust, online reputation for medical professionals is paramount, and it’s more important than most other professions.

The 2022 study results showed that 72% of patients start the search for a new doctor on the internet. Meanwhile, 85% of patients trust online reviews as much as they trust personal recommendations. Nearly 50% of patients surveyed indicated that positive online reviews convinced them to go so far as going out of network for medical services.

It’s most definitely a key aspect for the medical profession to maintain and build their online reputation.

Best Practices for Building/Repairing Online Reputation

Mike: Understanding that it’s such an important, significant aspect of a medical professional’s business these days, what are some best practices for a medical professional to either build up their online reputation or repair it if damage has been done?

Dan: There are a few key points I advise our clients to pay attention to when trying to build an online presence and reputation:

1. Build, design and maintain a professional website. Through your own website, you control the narrative. Make it sleek, easy to navigate, and user-friendly. A professional website bolsters your professional image and should feature your credentials, academic background, experience, specialties, and any recognitions or certificates.
2. Search engine optimization (SEO). If no one can find your website, it does you no good. Make sure your website is visible through internet search engines. It helps patients find you through prominence in search engine rankings. Effective SEO techniques can ensure your professional website and other positive content ranks highly.
3. Online directories and listings. These are third-party websites – consider it the modern-day Yellow Pages. Accurate and regularly updated information on online directories such as Google My Business, Yelp, WebMD, Vitals, and others enhances your credibility and boosts your visibility in search results.
4. Patient reviews and ratings. Always encourage positive reviews from satisfied patients. Patient reviews and ratings are instrumental in sculpting an online presence. These reviews are perceived by prospective patients and provide valuable intel on things like your communication skills, bedside manner, proficiency, and overall patient satisfaction.

Building a Quality Website

Mike: For a medical professional, how would they go about building and maintaining a quality website?

Dan: The website’s design, ease of navigation, and overall aesthetic can be the deciding factor for a patient choosing your services. Therefore, consider a significant investment in building, designing, and maintaining that website.

An effective website or patient portal should:

• Highlight your expertise, accolades, and accomplishments
• Feature positive reviews
• Incorporate multimedia content such as photos and videos
• Ensure a visually appealing and user-friendly design
• Use relevant keywords to enhance your search engine ranking
• Incorporate internal links to other relevant content on your website
• Encourage reputable sources to link to your website to boost your SEO

Impact of Search Engines

Mike: Can you talk more specifically about the impact of search engines? How do they play a role in connecting patients to doctors?

Dan: Internet search engines have become an integral and overall positive tool for how we access and obtain information. Search engine results are a primary source for market research by consumers and an increasingly influential factor in purchasing decisions. Therefore, SEO has become a massive industry relied upon by businesses and professionals alike.

As far as search engines go, there are a variety of options. Google is the king of all search engines, so it’s vital that you control how you appear in Google search results. It holds roughly a 90% market share of internet searches. Last time I checked, 99,000 search queries are processed by Google every single second, which amounts to 8.5 billion searches daily and 2 trillion searches annually on the Google search engine alone.

[Visual example of Minc Law search results]

You’ll see from that illustrative example that first, we have our website as the number one hit when you search for our business. That’s the way you want it. You want that controlled narrative that you’ve designed and cultivated appearing at the very top of your search results.

Number two, over on the right, you see a separate section that’s outside of the search listing – that’s our Google My Business listing. This will attach to every business that has a Google My Business listing. It will appear whenever someone searches your name. It’s essentially your address on the internet. It’s tied to Google Maps, so it’s going to have your location, all reviews through Google, a link to your website, and your contact information.

Besides that, you can see our business page and Facebook page showing. Below that would be other positive content that we’ve cultivated in our search results.

Online Directories and Listings

Mike: You previously mentioned online listings or directories. Can you talk more about directories in general, and then more specifically about directories designed for medical professionals?

Dan: There’s a variety of options for medical professionals as far as online listings and directories. We just looked at an example for Google My Business. A 2021 study noted a 25% uptick in conversions via Google My Business. Whether it’s Google My Business, Yelp, WebMD, or Vitals, you want to take ownership of your online listings and confirm their accuracy on search platforms and review sites.

Populate your profiles with useful details such as office hours, contact data, and the services you offer. Be mindful of relevant search terms when crafting your description. Include professional photos and headshots on your Google My Business listing and other profiles to add visibility and credibility to those listings.

Impact of Negative Reviews

Importance for Medical Professionals

Mike: What is the impact of a negative online review? And why is it so important for someone like a medical professional?

Dan: A study as recently as 2021 concluded that online reviews significantly influence the choice of doctors and healthcare facilities, particularly amongst the millennial generation. Yet in 2020, as many as 65% of physicians had absolutely zero online reviews.

Keep in mind a single adverse review has the potential to repel 22% of prospective patients. When it comes to these reviews and ratings, I often find that there’s a particular focus on the commentary in the review and not much attention paid to the rating. That’s all well and good until that cumulative rating starts to drop below a certain level.

A star rating of a business is critical in attracting customers. Only 13% of customers are open to engaging with a business that has a rating of 1 to 2 stars. Up to 86% of people admit that negative reviews compel them to consider other businesses. And 68% of consumers form an opinion after reading only 1 to 6 online reviews.

Popular Review Platforms for Medical Professionals

Mike: What are some of the most popular online review platforms for medical professionals?

Dan: We can put up a visual on the screen. There’s Google, of course. We talked about that. Healthgrades, Vitals, WebMD, RateMDs, Yelp. All of these are online platforms on which medical professionals can be rated. Several of them, such as Healthgrades, Vitals, WebMD, and RateMDs, are specifically dedicated to medical professionals. Those are the only professionals you’ll find reviewed or rated on those websites.

[Visual example of Google review listings]

You can see our business name there, the address, our star rating of 4.7 out of five based on 110 reviews. Then you have categories there, sorted now by “most relevant.” These are the reviews that Google finds most relevant to our business.

There are other options. You can sort by newest, highest, or lowest. The unfortunate truth is that many consumers doing market research filter straight to the lowest reviews. They want to see what negative experiences people have had with you, as opposed to simply reading all the positive experiences. That’s why safeguarding against negative reviews becomes so important.

Encouraging Positive Reviews

Mike: We know that no medical professional wants to invite a negative online review. But if that same medical professional wanted to encourage positive reviews, positive patient feedback, how would they go about doing that?

Dan: There are a few advisable best practices to use in this situation:

1. Ask directly for patient perspectives. Respectfully request that they share their experiences online after a positive experience or outcome. Make it clear that sharing their experience can assist others in making informed healthcare choices.
2. Simplify the review process. Make it easy for them. Make the process of leaving a review straightforward and easily accessible. Include links to review platforms on your website, social media profiles, or in emails directly to the patients.
3. Highlight the positive feedback you receive. Display positive reviews on your website and social media profiles.
4. Follow up with patients. Post-appointment follow-up emails or messages serve two purposes: one, expressing gratitude to the patient for their visit, and two, subtly reminding them to leave a review if their experience was positive.

Mike: When a medical professional or a medical professional’s office reaches out to a patient to encourage them to leave a review, can they encourage the patient to leave a positive review? Can they ask them to leave a five-star rating, please?

Dan: Absolutely. Yes. Businesses are free to ask patients for positive ratings and reviews. There’s no ethical rule against it. There’s nothing wrong with it. This is all part of safeguarding your reputation because 50 positive reviews certainly drowns out that one negative review. Whereas if all you have is one negative review, that’s all the prospective patient’s going to see.

Responding to Negative Reviews

Initial Considerations

Mike: We often get calls from medical professionals concerned about a negative online review. What advice do you give to those individuals?

When a client comes to me in this scenario as a medical professional, the first thing I tell them to do is take a step back and take a deep breath. We engage in a comprehensive question and answer session about exactly what’s going on with this review, with this patient, and what sort of problems the medical professional is facing because of this review.

After the medical professional and I have that discussion, we progress the conversation to whether we can actually physically respond on the platform where this review was published. If we can, how can we respond? What limitations exist for a medical professional nationally and in your particular state that restrict how you can actually respond to the review itself?

After we have those discussions, we then talk about, given practical and business considerations and the nature of what’s being said in that review, whether the medical professional should engage at all publicly or privately.

Legal and Ethical Restrictions

Mike: Let’s first talk about restrictions that may apply in how a medical professional can publicly respond to a negative online review. What restrictions are in place for medical professionals?

The primary restriction that medical professionals face when responding to online reviews is HIPAA’s privacy rule. As a medical professional deciding whether to publicly respond to an online review, you want to ensure strict compliance with HIPAA so that you don’t in any way disclose any protected health information.

You can do that in many ways that aren’t just explicitly saying someone’s name, their date of birth, or Social Security number. You can inadvertently disclose someone’s protected health information simply by acknowledging that they were a patient and that they received care.

Given HIPAA’s privacy rule and the restrictions placed by HIPAA, if you are going to publicly respond, make sure that you stick to general statements about your practice. Don’t ever use the patient’s name, obviously. Don’t discuss individual treatments. Don’t discuss individual allegations that may be raised in the review, for all the same reasons.

Dan: If a patient leaves a negative online review about the care and treatment that the patient received at a doctor’s office, haven’t they waived their privacy rights under HIPAA?

Mike: No, it’s a good question. Medical professionals often ask this. They’ll say, “This patient came and published this review and is saying their full name. They’re saying exactly what surgeries were performed. And we want to respond. We have documentation and medical records that prove that what they’re saying isn’t true.” And now the decision is can we respond in specific and acknowledge what this person is saying? The answer is no.

HIPAA is very clear that even when a patient discloses that they are a patient of the practice or the medical professional, that does not count as a waiver. As the medical professional, you still must adhere to strict HIPAA compliance rules.

Dan: As an attorney, if a client reveals attorney-client privilege and confidential information through a review, I know under my ethical rules and my profession that that client has waived that confidentiality. You’re saying that doesn’t apply to the medical profession?

Mike: Correct. It doesn’t apply to the medical profession. It’s not only because of HIPAA’s privacy rules, but it will also be based upon each individual state medical board’s ethical rules as well, which are all very consistent with each other. They are very clear and say that that is not a waiver under HIPAA, that is not a waiver of the physician-patient privilege.

HIPAA-Compliant Responses

Mike: Can you give us some examples? What does a HIPAA-compliant response to a patient review look like?

Dan: [Visual examples shown]

Here are some examples of appropriate responses from both a legal and ethical consideration:

1. “We always strive to deliver excellent care to all of our patients.” This does not divulge protected health information. It doesn’t even acknowledge that the reviewer was a patient. It simply states a positive, but generally applicable statement about your medical practice.
2. “Due to privacy regulations, we do not openly discuss any such concerns on this forum. Please contact our office if you have any further comments or suggestions.” This is a great way to inform a prospective patient who’s reading this review, or anyone in the public, that this particular medical practice would like to respond more. They would like to solve this patient’s problems or work with this patient, but legally they can’t. Instead of just saying that’s all we can do here, they offer to have this person contact their office to take it to a private resolution.

Non-HIPAA Compliant Responses

Mike: For purposes of contrast, can you give us some examples of non-HIPAA compliant responses to online reviews?

Dan: A non-compliant response with HIPAA would be any response that identifies the patient as having been a patient. For example:

1. “This is defamatory because your patient records prove otherwise.”
2. “Your procedure was in fact successful.”
3. “We are sorry your experience was unsatisfactory.”

These responses acknowledge without specifics that this patient was at your facility or was treated by your staff at some point in time. These are the types of examples that you may not think about right away. You have to take that step back, take a minute to assess the situation, and make sure that your response absolutely does not disclose any PHI.

Responding to Anonymous Reviews

Dan: We get contacted by a lot of medical professionals who have received online reviews published under a pseudonym or anonymously. They can’t correlate the complaint specifically to any particular patient. They sometimes suspect it’s a competitor or an ex-employee impersonating a patient. Can they respond with a statement along the lines of “We have no records of you as a patient. Please contact our office to discuss this review.” Would that be consistent with HIPAA rules or would it violate those rules?

Mike: That would not violate HIPAA’s rules. It’s a common circumstance that medical professionals face. Remember that the HIPAA rules only govern the relationship between a medical care provider and their patient. In this situation, the HIPAA rules will not prohibit a physician from revealing that this person is actually not a patient.

Dan: So what you’re saying in that circumstance is that because the doctor is not acknowledging that the person’s a patient, there’s nothing wrong with suggesting the possibility that the person isn’t actually a patient.

Mike: Correct. That’s a great way to say it – suggesting the possibility. Because the truth is, you don’t know right away when you’re responding exactly who’s behind this anonymous or pseudonymous account. So you are putting it out there to the public and suggesting that this person is not a patient, and that does not violate HIPAA. You aren’t disclosing any protected health information. You are not revealing the existence of a physician-patient relationship.

Dan: Let me add another twist to that question. We’ve talked about whether they can respond in that manner, but is it advisable or should they respond in that manner? Are there any risks associated?

Mike: There are definitely risks associated with any sort of public response to a public review that you publish. The risks in this particular situation would be that it could be that this anonymous or pseudonymous reviewer was, in fact, a former patient. And if they are upset enough to leave a negative review, if they then see a public response from the medical care provider saying essentially that this person doesn’t exist or didn’t receive any care, the risk is that that legitimate patient could feel silenced or could feel attacked, and may start publishing more or worse reviews.

General Tips for Responding to Reviews

Dan: When you’re called by a medical professional concerned about some negative online reviews, and you’ve already talked about the “can you respond” and what ethical and legal restrictions apply, are there any useful tips on a higher level that you provide your clients?

Mike: Absolutely. Taking a step back, some useful tips would be:

1. If you are a physician or a medical care provider with a professional website, it may be a good idea to have a disclaimer on the website that acknowledges the legal restrictions placed upon you in responding to negative reviews. This can be helpful because if a prospective patient has seen reviews and has seen either a lack of response or maybe a more generalized response from you, and they then visit your website and see this disclaimer, that will provide the information they need to understand exactly why your response was perhaps limited.
2. Never respond impulsively and never make a defensive response.
3. When talking specifically about responding to negative reviews, I think we agree, Dan, that the best possible thing you can do first is attempt to resolve it privately.

Dan: Let’s just say you have a client who wants to respond publicly to a negative online review. Two questions arise in my mind: both when and how should the medical provider respond?

Mike: To answer the question of when a medical care professional should respond, the answer is to as many reviews as possible, provided you are adhering to the legal and ethical restrictions that we’ve talked about. Responding to as many reviews as possible is a good thing. Even responding to negative reviews demonstrates that you, as a medical care provider, value feedback and that you are willing to work with people on resolving potential issues. It shows you aren’t the type of medical practice that is just going to blanket ignore any feedback you receive from your patients.

Switching gears to how a medical professional can respond, generally speaking, brevity is going to be your best friend in these types of reviews. You don’t want long-winded narratives for all the reasons that we’ve talked about – the risk of including even inadvertent protected health information. So brevity is important. The use of templates is also encouraged to eliminate that risk of potentially or inadvertently disclosing someone’s PHI.

Again, focus on general aspects of your medical care and not specific aspects of anyone’s personal experience. We showed some illustrative examples of directing the reviewer to contact you offline to try to resolve this privately.

But one of the biggest general tips would be do not apologize in these reviews. There are many reasons why you would not want to apologize in a public response. But the number one reason is that it violates HIPAA. It violates HIPAA’s privacy rule for the exact same reasons we’ve discussed – that it is suggesting or implying that there actually is a patient who needs to be apologized to, and you want to avoid that for sure.

Private Responses and Appeals

Options for Private Resolution

Dan: Let’s say that a public response to a negative review is not advisable in the particular situation. What options does a medical care provider have then?

Mike: A medical care provider can always privately deal with the issue and not in a public forum. There are a few options when that route is desired. Because negative online reviews cause damage that is often unquantifiable, removal of any such reviews should be prioritized by medical professionals and other businesses, to the extent removal is possible.

Removal can only be accomplished by someone with editorial control, and the people with editorial control are limited to the online platform itself – Google, Yelp, WebMD, Vitals, wherever the review is published. But also quite often, the person who published the review also has editorial control and can delete it if so desired.

Appealing to Online Platforms

Dan: How does an appeal or a request to a particular online platform work?

Mike: Each of these online platforms has rules or what’s called terms of service (TOS). Each user that signs up and registers an account with these platforms agrees to be bound by the terms of service. Violations of terms of service can cause a review to be removed. But it does not require the online platform to remove the review simply because the terms of service have been violated.

However, reporting terms of service violations, especially when they’re quite obvious and very clearly in violation of those rules, is definitely advisable. Platforms vary in both the timeliness and the thoroughness of their review when an appeal is filed.

Dan: Can you give us some examples of common terms of service violations that we see in these reviews?

Mike: We run into a lot of these scenarios and have litigated cases involving them:

1. Publishing more than one review of the same business, or under multiple pseudonyms.
2. Accusations of serious criminal conduct.
3. Discriminatory or explicit content, or inflammatory rhetoric.
4. Doxing, which is posting private information about a third party, including the person who’s being reviewed.
5. False and misleading information – this is the most common one we face.

Almost every online platform has terms of service that prohibit users from posting false and misleading information. However, the frustration is that none of these platforms wants to play judge and jury on that question. So to the extent that you submit a report claiming a review is false, the most likely response you’re going to get from the platform is that they are going to direct you to obtain a court order, which would mean that you would necessarily have to file litigation and get a judgment against the person who published the review.

Legal Action Against Platforms

Dan: One of the most common questions I get when talking with medical professionals or any of our prospective clients in this situation is: Why can’t we just sue the platform directly for allowing a negative review or a defamatory review to be published on their platform?

Mike: That’s a common question, especially when the review is posted under a pseudonym or anonymously and you don’t know who to sue. Common instinct is to want to sue the online platform which hosts and displays a defamatory review. However, all of these online platforms are defined as what we call interactive computer services, or ICSes – user-generated content websites.

This means that Section 230 of the Communications Decency Act comes into play. That law, which was passed in 1996, is what we call the “26 words that gave us the internet as we know it.” It provides online platforms such as these review websites, but also some of the most popular websites in the world right now – YouTube, Facebook, Instagram, TikTok – anywhere, any sort of online service where the user is generating the content, absolute immunity. It’s not simply an affirmative defense. It is an outright bar to suit.

So to the extent that the review is posted by some third party, you have to sue the third party. You have no viable claim against the online platform.

Best Practices for Private Resolution

Dan: What are best practices for a medical care provider who wants to attempt to resolve a situation like this by speaking directly and privately to the patient?

Mike: Speaking to the patient is never a bad idea, especially when you know who the patient is. Good old-fashioned customer relations is still an art form and it’s still very effective, even in the internet age. It can solve many of the issues that our clients face with online reviews.

A few keys when you approach the patient directly:

1. Do not be dismissive, no matter how much you disagree with the review or what any allegations or accusations within the review say.
2. Patients want to be heard. Clients in our practice want to be heard. Customers and consumers of all kinds, when they have an issue with the service or the product, want to be heard. When they feel like they’re dismissed, it’s like pouring gasoline on the fire.
3. Don’t be prideful. Attempt to reach an amicable solution because removal of the review is the goal. You’re not trying to win points here. You’re not trying to prove that you’re correct. You want to solve the problem, and the problem is solved when the review is removed.

Now when necessary, if a private, amicable solution is not possible or not advisable for one reason or another, a legal demand letter can be sent to the patient by an experienced and qualified attorney who is very familiar with this field of law.

Legal Demand Letters

Dan: What would a formal legal demand to a patient look like in this kind of situation?

Mike: Most commonly, a legal demand to a patient comes in the form of what we call a retraction demand or a request for correction, clarification, or modification. This is actually a prerequisite in several states. In every jurisdiction, however, such demands afford the publisher an opportunity to mitigate the potential exposure for damages in a lawsuit and provides the opportunity to avoid the lawsuit altogether.

However, our clients always need to be mindful of a potential for a Streisand Effect. Legal demand letters always come with that risk. So when sending legal demand letters on behalf of doctors, there is an artful skill that’s required in order to accomplish the goals you’re setting out to achieve.

There’s always a risk of an irrational patient who might post the demand letter online. Actually, I think that provides an opportunity because that’s the chance for you to get your side of the story out. While you can’t respond directly, publicly to the online review, if the patient chooses to post your response that you send to them online, that’s not a violation of HIPAA. The patient’s allowed to do that.

I always try to craft the demand letter so that should it be posted online, it’s going to reflect favorably on my client and negatively on the patient’s false narrative.

New FTC Rule

However, there is a new wrinkle in this. There’s a new rule that is being implemented by the FTC, which places some restrictions on issuing legal demands in response to negative online reviews. It doesn’t just apply to doctors, it applies to every industry. However, I do expect the FTC to be a bit stricter with enforcement of this rule on doctors than other businesses.

This new rule will prohibit a business from using unfounded or groundless legal threats, physical threats, intimidation, or any other tactic to coerce the removal of a negative review.

“Unfounded or groundless legal threat” essentially means that any claim you would have based on the review would be frivolous. Of course, you can avoid its application altogether by not having a threat in the letter at all. It can be phrased as a request, without any threat of litigation. And that’s entirely possible and permissible even under the new FTC rule.

Litigation

When Litigation is Necessary

Dan: Let’s assume we’re in this scenario where no other option has worked. Appealing to the platform didn’t work. Appealing to the patient didn’t work. And the medical professional is faced with a review or set of reviews that are highly damaging. You and I have been in several such instances which wound up in litigation. Can you discuss the scenarios where litigation is both justified and necessary?

Mike: Yes. You touched upon probably one of the more common situations in which litigation is justified and necessary. That’s where you have been unsuccessful in getting the defamatory content down, either by appealing to the platform or the reviewer directly. For the platform, what we talked about most of the time, if they aren’t willing to delete the review immediately, they’re going to tell us that we need to go obtain a court order for that. So that’s where litigation becomes necessary and justified.

The other most common scenario in which litigation really is the only potential option moving forward would be if you do not know who the defendant is. You could have an otherwise viable claim, but if you don’t know who to sue, you need to figure that out first. The way that we go about doing that is by filing what’s called a John Doe lawsuit.

The lawsuit looks just like an ordinary or traditional defamation complaint, except instead of a named defendant, we use a placeholder – John or Jane Doe. We file that suit, and we will then issue subpoenas to the appropriate online platforms where the review was published to obtain user data. That could be something like their name or phone number. It could be their address, but it also could be Internet Protocol addresses. Through production and assessment of that user data, we are typically able to identify a John Doe defendant.

Elements of Defamation

Dan: To file that lawsuit, the plaintiff, our client, the medical professional, needs a viable claim. In such circumstances, of course, those claims are based around defamation. Can you explain for our audience what qualifies as defamation?

Mike: Yes. The definition of defamation is going to be specifically dependent on the jurisdiction in which you live. But generally speaking, there are five core elements that courts across the country are going to be looking for when determining whether you have a viable claim:

1. The statement must include false assertions of fact.
2. The statement must be about the plaintiff, about the person being damaged.
3. The review must be published to a third party, and that third party can be a single third party, provided it is not only the person who has been complained of in the review.
4. The statement will be viable if it was made without any sort of consent from the person who was reviewed or was made without any sort of legal privilege attaching to the statement.
5. The publication and the defamatory allegations made within the publication have caused harm – reputation or economic.

Protected Speech vs. Defamation

Dan: Of course, defamation is not protected speech and not considered free speech. Can you discuss the types of statements that are free speech, even if they do harm the reputation, and are not considered defamatory?

Mike: There are several ways that someone could communicate in a non-defamatory way:

1. Truth: One of the primary defenses, if not the number one defense to any defamation claim, is that the statements made were true or substantially true. It doesn’t mean that those statements may not have been negative towards the medical care provider. And it doesn’t mean that those statements may not have caused damage. But if they are ultimately true statements, you do not have a viable claim for defamation.
2. Opinion: One of the other hallmark defenses to a defamation case would be that the speech complained of is opinion. It does not meet that first element we talked about requiring that defamation include false assertions of fact. What that really means is that when you look at the statement and you assess whether it is actually an assertion of fact or an opinion, you ask yourself whether that statement can be objectively proved or disproved through evidence. If you can’t do that, if it’s an opinion, it will not be deemed defamatory.
3. Rhetorical Hyperbole: If a statement is made in the realm of rhetorical hyperbole, something that isn’t asserting a fact that can be disproved, that also isn’t an opinion, but is really giving you a hyperbolic situation or something clearly overexaggerated. That too can be a common defense for a defamation claim.

After Identifying the Defendant

Dan: Let’s say we reach this point. You’ve filed a lawsuit against an anonymous or pseudonymous defendant, named as a John Doe, or some other placeholder. You’ve issued the appropriate subpoenas, obtained the user data from the platforms, analyzed that user data, and identified your defendant. What happens at that point?

Mike: Our recommendations to our clients are going to differ based upon who exactly has been unmasked through this process.

1. If we unmask a legitimate patient who matches a patient within your records, our advice is to seek private resolution, if possible. We’d try to avoid taking the case to the next step and seek a faster resolution with that patient.
2. On the other hand, if we unmask an anonymous speaker who happens to be, for example, an ex-employee of your practice, or a competitor to you or your practice, your claims become a little bit different there. The approach we take would certainly be different. Whereas with a patient we may want to take a softer approach to privately resolve this, if it is truly a competitor or ex-employee who’s taken this vehicle to harm you, there may be more aggressive approaches that we’ll want to take more immediately.

Dan: Certainly, there have been several instances in which we’ve caught a tiger by the tail. And the client is more than justified in seeking a pound of flesh through that litigation.

Mike: Absolutely. It’s the only thing they can do at this point if they’ve been damaged enough.

Damages in Defamation Lawsuits

Dan: Speaking of damages, what sort of damages are available in a defamation lawsuit?

Mike: Plaintiffs in defamation lawsuits can be awarded both monetary damages and non-monetary damages like equitable relief.

Monetary damages include:

1. Compensation for reputational harm incurred
2. Compensation for loss of income or future earnings
3. Reimbursement for mitigation expenses involved with the suit
4. Compensation for mental anguish and distress suffered as a result of the review
5. Punitive damages, where the situation calls for it and where the facts allow. This is typically when a reviewer acts with the requisite amount of malice or intent in causing harm.

Non-monetary or equitable relief can include:

1. A decree from the court that the review is false and defamatory. This can be very valuable for public relations purposes moving forward.
2. An injunction from the court. This could be both a mandatory injunction which requires the removal of the review, or a prohibitive injunction, which precludes someone from republishing the same material that we’ve now just deemed to be defamatory.

Considerations Before Litigation

Dan: Assuming you’ve worked through the entire litigation process and you’ve met all the legal elements, you’ve unmasked an anonymous speaker, if appropriate, and you can prove damages. Does that mean that a medical care provider should always proceed with litigation? Are there other considerations before taking that next step?

Mike: Of course, and this is an ongoing conversation that we have with our clients, both at the time of our initial consult, prior to filing any lawsuit, and at the point that we might identify the defendant. Clients have to understand that the wheels of justice turn slow. The process can take a long time, and it can be very tolling, both emotionally and economically, on the client. It’s expensive, and there’s a lot of ups and downs. I often analogize litigation as being on a roller coaster. There are ups, downs, frights, and points of excitement. How much you enjoy it can completely depend on your personality.

The outcomes of litigation also are uncertain. No matter the strength of your claim, there’s always the chance for jury nullification, where the jury doesn’t follow the law, or there is some twist at trial that you didn’t expect. A judge makes an adverse ruling that you have to appeal. All of these considerations should be taken into account.

Lastly, even if you have your best day in court, you win on every issue, every argument, you can’t bleed a turnip. If money is your goal and you want to be compensated, the collectibility of your defendant, the ability of your defendant to pay any judgment has to be taken into consideration. Defamation in most circumstances is an intentional tort. Therefore, while sometimes homeowner’s insurance or some other type of insurance coverage might cover the attorney’s fees for the defendant, it won’t ultimately cover the judgment that’s rendered against the defendant.

There’s a question of whether the juice is worth the squeeze that comes up during these conversations.

Lastly, the Streisand effect is always a risk. You have to consider that you are now creating a public record of statements that you claim to be false and defamatory. Even though that public record very clearly establishes that you believe the statements to be false and defamatory, it’s something that can generate media coverage. It’s something that can generate social media posts. And there’s nothing wrong with people reporting on the lawsuit, the allegations in the lawsuit and the arguments of both sides in the lawsuit, no matter who’s correct.

Conclusion

Thank you for listening to our talk today. Hope that you learned some valuable information. If you did find it useful, please do share it with friends and colleagues. Should you ever find yourself in need of our services, of course, you can find our website at www.minclaw.com. On there, you’ll find contact information, online forms that you can fill out to set up a consult with us.

It is an important issue. I think it’s going to increasingly become an important issue, especially in the medical profession. And something that doctors are learning more and more about as patients and, really, just overall how purchasing decisions are made online too, based on online research and market research done on the internet.