Physician recourse to online reviews may be futile

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The following is the pilot review in 2 Minute Medicine’s new Law & Medicine Specialty Topic, which aims to briefly highlight key current issues in health law published in academic law journals. These may not necessarily be studies, rather reviews on crucial law topics affecting medicine. This article reviews a report in the Health Matrix Law-Medicine Journal from Case Western University. 

1. Physicians have a limited ability to directly respond to negative reviews and defend their practice because of HIPAA’s privacy rules preventing disclosure of protected health information.

2.  Physicians rarely establish successful defamation suits against patients who falsely post anonymous negative reviews due to the difficulty in identifying the patient and the strong protections afforded to online speech.

3. Physicians using contracts inhibiting patients from posting online reviews to bypass defamation laws is largely unenforceable and may lead to legal liability for deceptive practices.

Rundown: Websites that rate physicians are burgeoning sector in the online landscape. Numerous websites include rating and review systems for physicians, often allowing a consumer/patient to remain anonymous in their rating. This has sparked several notable lawsuits in which physicians sue patients leaving defamatory online comments. While the Pew Research Center’s Internet & American Life Project (2011) concluded that most physicians reviews online had not become a factor in making health decisions for consumers, other studies have countered and affirmed that patients do regularly make use of physician review sites.

It is not surprising that physicians may attempt to seek legal solutions or try to defend online negative reviews. In direct response to online criticism, physicians are largely unable to respond to allegations due to HIPAA’s Privacy Rule. The rule protects information that may reveal the identity of a patient, even if patients themselves volunteer information about their care in their review.

There are two types of legal tools physicians may employ to defend their practice include suing patients for defamation or using contracts to prevent patients from posting reviews. First, establishing a prima facie case for defamation is notoriously difficult because there is a high burden to demonstrate a legitimate suffering of reputation, and patients’ speech that is considered opinion or is substantially true is protected. Physicians also run into difficulty identifying individual authors of defamatory statements and are further thwarted by the Communications Decency Act (CDA), which immunizes Internet service providers and host websites from defamatory content posted on their websites from liability. Second, physician use of contracts prohibiting patients from posting online comments may backfire. Medical non-disclosure agreements (NDAs) are contracts that prospective patients sign that either restrict a patient’s ability to post any review at all, or effectively make any online commentary intellectual property belonging to the physician. Thus, when a physician seeks to respond to negative reviews, they are able to employ the less burdensome claims of breach of contract or copyright infringement. However, the use of medical NDAs to bypass defamation laws and the CDA doesn’t work. NDAs may be deemed unconscionable, and thus unenforceable, and may actually subject the physician to liability. NDAs may be considered violations of the Strategic Lawsuit Against Public Participation statute because NDAs are contrary to public policy and physicians may end up owing patients punitive or compensatory damages for abuse of the legal process.

Click to read the study in Health Matrix

Relevant Reading: Limiting Exposure to Medical Malpractice Claims and Defamatory Cyber Postings via Patient Contracts

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