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

opinion. You will likely maximize your chance of success in this appeal if you are able to demonstrate that the post violates the Web host’s own “Terms of Use.” Frequently the Web host’s “Terms of Use” prohibit users from posting material that “…infringe[s] a third party’s rights, including without limitation any privacy, publicity or intellectual property rights, or that are unlawful, untrue, harassing, libelous, defamatory, abusive, potentially tortious, threatening, harmful …or that is otherwise objectionable.”⁷ To the extent that your request for removal is able to make the case that the post falls into one of these prohibited categories, you are likely to increase your chances of success in persuading the Web host to voluntarily remove the comment.

      You may decide ignoring the negative review is your best response, and often it will be. However, you should evaluate responding on a case-by-case basis. If the person leaving the comment has a large following, appears to be making a measured and justified complaint to anyone who might come across it, or is turning to the Internet as a last resort after already contacting your office, you may want to respond to the review (without violating HIPAA or state privacy law). In those instances where you chose to respond, it is imperative that you remember that your audience is not the individual posting the content; it is the dozens of people who will see your response and judge you (and your practice) on the basis of your response. You do not want to engage in an online debate over the incident that provoked the review. You do not want to appear defensive, confrontational or accusative. You do want to come off as caring, concerned and compassionate. A productive response along these lines might be:

       “We are sorry that you feel that way. We treat hundreds of patients who are extremely satisfied with our practice, and we want to make sure that you are one of them. Please call our office so that we can see what we can do to make things right.”

      Another way to deal with a negative review is by receiving multiple positive reviews, effectively “burying” the negative review amidst a sea of the positive. If a single bad review is all that appears on a Web search, it may stand out. If the negative review is one of many and all the other reviews are positive, the one negative review is more likely to appear as an aberration. One way that a negative comment can be “buried” amidst a quantity of positive comment is for patients who have had positive experiences with your practice to post positive comments and ratings.

      However, you need to be cautious in this regard — there are regulations that limit your ability to solicit positive reviews by either compensating (whether by cash or by “in-kind” payment, such as discounts) reviewers or requesting persons associated with your practice (such as your staff) from posting positive comments; reviewers who post such endorsements must disclose that they have been compensated for their review or disclose their relationship to the practice. Making it appear that solicited (e.g., paid for) content originated spontaneously rather than as part of a campaign is sometimes referred to as “astro-turfing.” (It takes place at a “grassroots” level, hence the term.)

       Another way to deal with a negative review is by receiving multiple positive reviews, effectively “burying” the negative review amidst a sea of the positive.

      Likewise, you can seek to have other positive content on your practice posted on the Internet so that a search by a potential patient will yield overwhelmingly positive content. Just make sure that what you say is true. Some means of generating such positive content posted include:

      • Get media attention for performing charitable endeavors (these will show up when potential patients search your name on the Web)

      • Contribute dental-related content to other websites

      • Start a practice-related blog

      The majority of people do not go to the second page of a Web search. If you are able to provide sufficient positive content such that the negative comment is pushed off the first page of a search, you will have successfully minimized the chances that someone searching your name will ever see the comment.

      To summarize, responding appropriately to a negative review is a difficult and emotion-laden task, but it can be important to do so. Take a few deep breaths before you decide how and if to respond. If you elect to retain an attorney, be aware that on some occasions this course of action has backfired in a number of ways (e.g., bringing even greater publicity to the negative comment, resulting in a dentist forced to pay not only their own legal fees, but those of the defendant). If you elect to seek to have the Web host voluntarily remove the post, review the Web host’s own terms of use to see if the post violates those terms. Finally, if you elect to respond to the post online, remember two things:

      • Avoid violating HIPAA and state privacy law

      • That your “audience” is not the individual comment creator, but the dozens of others who will see your response and will likely judge you and your practice more on your response than on the negative comment itself.

      Related References and Resources

      • Dentist Pays Sizable Penalty for Not Knowing 47 USC 230 — Wong v. Jing

      www.blog.ericgoldman.org/archives/2011/05/dentist_pays_fi.htm

      • Maintaining a Positive Online Reputation

      success.ada.org/en/learn/online-educational-opportunities/online-reputation-management-webinar/maintaining-a-positive-reputation?WT.mc_id=email_huddle

      41. Can My Dental Practice Advertise That We Accept Medicaid?

      In addition to the rules that apply to advertising generally, a dental practice should review proposed advertising and other published materials that refer to federal health care programs such as Medicare, Medicaid and CHIP to make sure they are in compliance with any additional requirements set by those programs.

      For example, a dental practice should avoid using symbols and logos of government agencies in their promotional and other published materials. Government seals and logos, such as the seal of the U.S. Department of Health and Human Services (HHS), may not be used by the private sector on their materials, which could imply that HHS favors or endorses the practice, its services, or its personnel. State agencies likely have similar restrictions on the use of their logos and symbols.

      Although not limited to advertising, federal fraud and abuse laws, such as the federal Anti-Kickback Statute (AKS) and beneficiary inducement prohibition, should also be kept in mind when developing advertising and other materials. The AKS is a federal law designed to prohibit the exchange of any remuneration to induce the referral of business covered by a federal health care program. The AKS even applies if remuneration is merely offered or solicited, but not exchanged. The AKS imposes both criminal and civil sanctions.

      Under the beneficiary inducement prohibition, a person who offers or gives a Medicare or Medicaid beneficiary any remuneration that the person knows or should know is likely to influence the beneficiary’s selection of a particular provider, practitioner, or supplier of items or services covered by Medicare or Medicaid may be liable for civil money penalties. There are certain exceptions to the prohibition.

      Advertising the routine waiver of Medicare or Medicaid copays could implicate federal fraud and abuse laws. Your state Medicaid agency may have additional requirements or guidance regarding advertising.

      42. Does Our Dental Practice Need to Be Aware of What Federal Laws Apply to Commercial Messages Sent Via Telephone, Email, Fax and Text?

      Even if a dental practice does not think of itself as a “telemarketer,” laws such as the Telephone Consumer Protection Act may impact the practice’s activities, and a dental practice should understand when these