A Dentist’s Guide to the Law. American Dental Association

      • ADA Center for Professional Success

      success.ada.org

      • OCR Office for Civil Rights (OCR)

      www.hhs.gov/ocr/privacy

      • The ADA Practical Guide to HIPAA Compliance: Privacy and Security Manual

      adacatalog.org or 1.800.947.4746

      40. What Can I Do If a Negative Rating, Review, or Comment About My Practice Is Posted on a Blog or Website?

      Internet ratings sites (Yelp, Healthgrades, DoctorOogle, Bestdentists, Angie’s List, RateaDentist, RateMDs, etc.) are almost all inherently unfair. The people posting the ratings are generally anonymous (save for the poster’s screen name) so they take no real ownership for the content. Discovering the poster’s identity is often impossible (and, where it is possible, will often require expenditure of substantial legal fees). Further, even in the unusual situation where you are able to learn the poster’s identity, his or her comments have wide protection as his or her “opinion,” as opposed to a factual allegation. The websites on which they post their comments are nearly untouchable from a legal perspective. Even if you are able to discover the identity of the poster and prove (overcoming obstacles to proof such as HIPAA and state privacy laws) that the comment is defamatory (as opposed to opinion), proving damages in such cases is extremely difficult.

      Given that these ratings sites likely will be with us for the foreseeable future, and that consumers afford them credibility, it is important to understand how to best navigate them. One 2013 study found that 79 percent of consumers trust online reviews as much as personal recommendations.⁴ But first a brief discussion on how we got here, with a real life example:

      A parent of a patient of a California dentist wrote the following on Yelp:

       “1 Star Rating! Let me first say I wish there is a ‘0’ star in Yelp rating. Avoid her like a disease! She treated two cavities…but my son was light headed for several hours after the filling. The filling the dentist used is metallic silver color. The metallic filling… has a small trace of mercury in it. I regret ever going to her.”

      The dentist requested that Yelp remove the review. Yelp did not remove the review. The dentist then filed suit claiming libel, slander, and intentional and negligent infliction of emotional distress against the parents who wrote the review and Yelp, the host of the Internet forum. (This was an unusual case in that the reviewer was known to the dentist.)

      The court held that Yelp was entitled to dismissal under California’s anti-SLAPP statute. A SLAPP (Strategic Lawsuit Against Public Participation) lawsuit is a suit filed to stifle those who take an adverse position on an issue of public interest. Anti-SLAPP statutes allow courts to dismiss lawsuits which stifle discussion on matters of public importance and for which there is not a reasonable likelihood the plaintiff will prevail. More than half the states currently have such statutes.

      The court held that, in this case, dental fillings were a matter of public interest. Because California’s anti-SLAPP statute permits the prevailing party to recover attorney’s fees, the dentist was ordered to pay over $80,000 of other parties’ (Yelp’s and the parents’) legal fees. This was in addition to any fees the dentist paid to her own attorney, and the cost to the dentist in time and angst.

      But wait — there’s more! The dentist received considerable publicity over the lawsuit, including newspaper, radio and Internet reporting. The dentist had inadvertently turned one small Web posting into a Web avalanche.

      The “Streisand Effect” — the term for what sometimes occurs where an attempt to remove, censor, have deleted or otherwise hide information on the Internet — has the unintended consequence of publicizing the information even more broadly. The term has its genesis in a lawsuit filed by Barbara Streisand seeking to have aerial photographs of her coastal California home removed from the Internet plus $50 million in damages. Before Ms. Streisand filed, the image had been downloaded only six times, two of them by her own attorneys. As a result of her filing the case, the next month more than 420,000 people visited the site. There are a number of examples in the dental realm where a dentist responding to a negative post inadvertently ended up only bringing greater attention to the posting. For example:

      • A Yelp reviewer’s attorney responds to a dentist’s letter:

      www.popehat.com/wp-content/uploads/2013/06/thisissparta.pdf

      • Anti-SLAPP dismissal of a suit:

      www.katu.com/news/local/Dentist-loses-defamation-suit-after-former-patient-criticizes-him-online-171622011.html

      • Dentists loses on anti-SLAPP and is assessed fees of $43,000 for the first action and $23,000 for the second:

      www.courts.ca.gov/opinions/nonpub/A136463.PDF

      • A listing of doctor lawsuits over patient reviews:

      www.digitalcommons.law.scu.edu/cgi/viewcontent.cgi?article=1289&context=historical

      A dentist bringing suit to have a negative review removed starts with a few disadvantages:

      • The Web host is protected from liability under the Communications Decency Act of 1996 (47 U.S.C. Sec. 230); the host is not a “publisher” of the comment

      • It is often difficult and expensive to obtain the identity of the content creator

      • Reviews and comments have wide protection as “opinions”⁵

      • Medical professionals may be constrained from responding by HIPAA and state privacy laws

      • Proving monetary damages is difficult to do

      • Where anti-SLAPP laws are applicable, the dentist may be liable for the defendant’s legal bills, as well as the dentist’s own legal bills

      • The lawsuit itself may result in bringing even greater attention (the “Streisand effect”) to the negative review

       As you look at a posted negative review, take a deep breath and consider:

      • How many people will really see the negative review?

      • Will this review actually affect the practice/business?

      • Is the host of the Internet forum immune under the Communications Decency Act?

      • Will you be able to identify the content creator?

      • Would it be worth the considerable time, effort, expense and adverse publicity to file and pursue a lawsuit?

      • Is there a chance that your response (lawsuit or otherwise) might actually increase the number of people who will read the negative review?⁶

      • Is there a means that can be used to remove (or minimize the effect of) the review or to positively position the practice to make up for the negative review?

      If litigation is not generally the answer to a negative review, then what is? Well, unfortunately there are no silver bullets.

      One thing you might try is to request that the Web host voluntarily remove the offending Web post. On this front, your chances for success are