Responding to Negative Online Reviews
On June 5, 2023, the Office for Civil Rights (OCR) issued yet another announcement of a settlement with a healthcare provider who violated HIPAA privacy rules by responding to negative online reviews. The violation cost Manasa Health Center $30,000 and additional stringent requirements under a corrective action plan.
The proliferation of rating websites and social media makes it very likely that most doctors, even those with a limited internet presence, will be listed on some rating sites. Providers must navigate a fine line between protecting themselves against unfair criticism and protecting patient confidentiality.
A Reasonable Approach
The ICS advises that doctors consider a few possible approaches and decide a course of action based on a careful case-by-case evaluation. HIPAA enforcement has become more stringent, and the problem with responding to any comment posted by a patient is that, without a patient’s authorization, the physician is not even allowed to confirm that the commenter is or has been a patient. Providing any answer that affirms the commenter’s patient status, even if the answer does not disclose specific health information, violates HIPAA privacy regulations. This holds true regardless of whether the provider deems the commenter’s post to be distorted or unfair. [See section below regarding recourse for defamation.].
The ICS believes the most appropriate and safest approach is for the chiropractic physician to post a general response to a negative comment, such as:
In this way, the physician does not confirm the commenter’s status as a patient but demonstrates a willingness to accept comments and suggestions in a confidential manner.
What About Defamation?
Another approach about which some members have asked is to file a lawsuit for defamation. The ICS cautions our doctors about this approach due to Illinois “anti-SLAPP” laws (see below). For clarification, defamation is the publication of a false, injurious statement about the good name or reputation of another, and it applies equally to statements made online as in person. A statement is defamatory if it impeaches a person’s integrity, virtue, human decency, respect for others, or reputation, lowers that person in the estimation of the community, or deters third parties from dealing with that person. In Illinois, impugning a person’s ability in his or her trade or business is in a special category considered particularly egregious. The statement must be demonstrably false to be actionable.
When proven, the offending commenter may be required to pay financial damages to the subject of the defamation. Some attorneys have reported success in having offending commenters remove defamatory online comments when the attorney (representing the physician) notifies the commenter of the commencement of a defamation lawsuit. One important caveat is that the statement must legally qualify as defamatory; in other words, it must be false and otherwise meet the definition of defamation. Otherwise, the judge will deem the lawsuit to be an “abuse of process,” and the person who files it may have liability for filing a frivolous lawsuit. A defamation lawsuit against a disgruntled commenter is simply one tool to consider when the comment is clearly false and injurious to the doctor’s professional reputation. The goal is not solely to recover financial damages but, more importantly, to have the comment removed.
However, Illinois is one of many states that has passed a so-called “anti-SLAPP law,” giving additional rights to persons who are sued for posting negative reviews.
Illinois Anti-SLAPP Law
“SLAPP” stands for “Strategic Lawsuits Against Public Participation,” referring to meritless defamation lawsuits that some businesses have filed solely to intimidate persons from posting negative reviews. If a reviewer can prove that a business owner filed a defamation lawsuit only for the purpose of “chilling” the reviewer’s right to express an opinion, the Illinois Citizen Participation Act allows the reviewer to ask the court to rule that the case was brought not as a legitimate defamation suit have this type of litigation dismissed early in the process, and the business owner may be ordered to pay the reviewer’s attorneys’ fees and court costs.
Although it does not prevent a business owner from bringing a good faith, legitimate defamation suit, the owner must carefully consider the risk of having the suit dismissed and being ordered to pay the complainant’s attorney’s fees and costs (in addition to the risk of being sued for abuse of process, as described above).
What About the Review Site?
Keep in mind that the commenter is the only available defendant in a defamation action. The Internet service provider and the websites are exempt from liability under Section 230 of the federal Communications Decency Act of 1996 (47 U.S.C. § 230). This provision recently has been the subject of much debate at the national level; however, it is still firmly in place at this time. Therefore, the threat of filing of a defamation case against the provider or the site will be of little or no use in having the site itself remove a negative comment; any removal will need to be initiated by the person who posted the comment.
It is imperative for healthcare providers to familiarize themselves with the intricacies of HIPAA and state-specific laws when it comes to responding to negative online reviews. The online world has added a layer of complexity to patient-provider interactions, and the repercussions of crossing legal boundaries, as demonstrated in the case of Manasa Health Center, can be severe.
Due to the overlapping of HIPAA privacy rules with the immunity of web platforms, a cautious, measured approach is highly recommended. The safest bet is posting a general, non-confrontational response that invites the commenter to contact the office privately, as described above. Defamation may also be considered if the comment is truly damaging and false, but is not without its risks due to anti-SLAPP laws. And while providers may feel frustrated with the review sites’ immunity, the law is clear: the individual commenter bears responsibility for defamatory statements, not the platform on which they are posted.
Above all, providers should remember the overarching goal is not to win a war of words online, but to provide the best patient care possible. Maintaining professionalism and integrity online portrays the type of care provided in the office. The best response to negative reviews is often keeping an open mind to areas where perhaps the practice could improve service quality and patient satisfaction, and those positive experiences will eventually reflect in online reviews. Navigating the digital landscape requires both caution and knowledge, but with the right approach, healthcare providers can turn this challenge into an opportunity to further enhance their reputation and foster stronger relationships with their patients.