False or misleading online reviews can make or break a business, especially in the health care space. Negative reviews can hurt a provider’s reputation, referral rate and livelihood.
As such, it’s important for behavioral health providers to act quickly if and when libelous statements pop up online, according to Marc H. Kallish, a shareholder at the law firm Roetzel & Andress in Chicago.
“You don’t have to be helpless,” Kallish told Behavioral Health Business. “You should go after those people and, at a minimum, work to try to get the information taken down off the internet.”
Before providers can do that, though, they have to determine whether the statements in question are presented as opinion or fact. For instance, a provider’s demeanor is a matter of opinion, while treatment plans are a matter of fact. Kallish, who acknowledged the distinction isn’t always clear cut, pointed to an example in the physical health realm to illustrate the difference.
“If you said, ‘I had my hip replaced by Dr. X, and my hip was never the same, … so the doctor is not a good doctor,’ that probably is not slanderous,” he explained. “But if you said, ‘he operated on the wrong hip,’ and that’s false, that is slanderous.”
Once a provider determines information in a review is factually incorrect, the first line of defense is to check with the posting board for its rules regarding false or libelous information. If such comments are banned, a provider might be able to get the host to take the post down.
However, that can be easier said than done.
“Our experience is that often these hosting sites are not very receptive to that,” Kallish said. “So sometimes a letter from a lawyer also is helpful.”
The lawyer can direct those letters to the hosting site or directly to the patient commenter, if the person uses his or her real name when posting the review. If the recipient fails to comply, the provider can threaten them with a lawsuit.
“The majority of people posting false or misleading information online about physicians are not financially capable of providing compensation, so that’s important to consider when bringing a lawsuit against somebody,” Ericka Adler, a partner and leader of the Health Care practice at law firm Roetzel & Andress in Chicago, warned in a statement. “At the same time, a lot of parties are surprised they can face legal action over their posts and are accustomed to thinking they can say anything they want without legal impunity, so oftentimes they are unlikely to engage further when faced with legal action.”
One factor that complicates matters, however, is that people frequently leave reviews anonymously. In that case, providers can enlist lawyers to subpoena the hosting website and internet service providers to track down the source of libelous statements.
“If there’s a very serious anonymous post, you need to take action very quickly … because there are limits to the timeframe in which the data [to identify the poster] exists,” Kallish said. “And there are also some time restraints with the courts as to how far back they’ll make internet providers and hosts provide information, and it’s fairly short.”