By Marla Durben Hirsch, contributing writer
More patients than ever are turning to the Internet to share their provider experiences, causing more providers to consider how to deal with negative reviews. One of the latest lawsuits may provide some much-needed guidance in this area.
Ohio plastic surgeon Bahman Guyuron sued a former patient regarding negative reviews she posted anonymously on several websites after he performed her nose job. According to his lawsuit, the former patient posted false and disparaging information that injured him and damaged his reputation. Some of the information she posted stated that he was untrustworthy and unprofessional, her nose is now twice the size than it was originally, there was no follow-up care, that Dr. Guyuron posts or encourages others to post false positive web reviews, and that there was no informed consent to the procedure.
In Dr. Guyuron’s lawsuit he asked for money damages, an injunction to keep the former patient from posting about him on the web and an order to remove the existing statements, which are still on the internet.
The former patient claims that the statements were either truthful or her opinion, so she’s not liable for defamation.
What’s somewhat unique about this lawsuit is that it appears to be going to trial. Most of these lawsuits get settled or thrown out, in this case however, the court in April refused to rule for either party as a matter of law, stating that there were too many questions that first needed to be hashed out. The trial is slated for early 2018.
Whether a defamation lawsuit will be successful depends on the facts involved. Some of the most interesting questions in this one include:
- Whether these particular posts are protected as free speech under the Constitution. Are the former patient’s negative posts truthful? Did Dr. Guyuron really make her nose twice as large? Is the doctor really a liar or was that the patient’s opinion?
- Whether Dr. Guyuron is a public figure. If so, it will be harder for him to demonstrate defamation since he needs to show that the former patient had published her statements with “actual malice.” He’s arguably just a physician in a private practice. However, Dr. Guyuron maintains a website touting his expertise, accomplishments and affiliations. In addition, the website states that he’s one of the world’s top plastic surgeons, an internationally recognized teacher and innovator in plastic surgery, and author of several books. At what point does a physician cross the line and become a “public” figure?
- Whether HIPAA will be an issue. Sometimes providers who try to defend themselves against a negative review reveal patient identifying information, which can lead to a violation of HIPAA’s privacy rule. It’s okay if a patient discloses her own identifying information, it’s not if the physician does so without permission.
Negative reviews can hurt a physician’s practice. Yet litigation is always a risky business, especially when there’s a jury trial, which Guyuron has requested.
The best defense is prevention. Try to assess patient concerns early on before they fester. Some physicians provide surveys or other opportunities for patients to provide feedback before they’ve even left the office.
If you do come across a negative post about you on the internet, you may be able to take action depending on what it says. For example, if it’s clear that it wasn’t posted by an actual patient, the website may remove it. If a patient has complained that you spent too much time inputting into your electronic medical record and not enough time face-to-face, perhaps private outreach and an apology will mollify him.
It may also be a good time to reassess whether there’s truth to the negative review and modify operations accordingly. For instance, if patients are posting that the front office is surly, that may be worth looking into.