Defamation in the age of social media: A roadmap for healthcare providers

October 23, 2019

Healthcare providers are facing challenges with negative online reviews

As social media becomes increasingly influential in the marketplace, healthcare providers are facing unique challenges with negative online reviews. Unfavorable-and sometimes unfair-Yelp or Google reviews of a doctor or facility can have significant adverse effects on a provider's reputation. Some businesses attempt damage control by publicly responding to these reviews, but this approach presents complex issues for healthcare providers, which are bound by state privacy laws and the Health Insurance Portability and Accountability Act (HIPAA) to protect confidential patient medical information.                                           

Healthcare providers, including physicians and healthcare facilities, are often unable to respond to these negative reviews in any public forum if asked about them by patients or other members of the public or press.

For example, let's say that a physician sees a patient who is seeking opioids to feed his painkiller addiction. The physician refuses to write the prescription, and then the patient retaliates by attacking the physician's abilities and reputation online and even in the office in front of other patients. As crucial as it might seem for the physician to respond, he cannot defend himself and reveal that the disgruntled patient is only unhappy because he did not receive more narcotics.

Given these privacy constraints, what should providers do when confronted with these unfair critics? While sometimes their hands may be tied, in certain circumstances providers can pursue legal remedies. A provider may be able to prove that the statements in a negative online review are false and constitute defamation, for which the perpetrator may be liable for damages to the provider's professional reputation. For example, in Illinois, defamation per se exists when certain false statements are so automatically damaging that damages do not need to be proven. One such instance is when false statements assert that a person is unable to perform in his or her employment or lacks integrity in his or her employment. Because Illinois finds the potential injury to a person's professional reputation so egregious, the courts are more receptive to damages.

At the very least, a provider may seek to have an attorney send a cease-and-desist letter to someone who posts an unfair review, warning of the risks of such defamatory statements. A victim of online defamation should make sure to screenshot the defamatory statements and attempt to preserve and keep a record of any evidence available.

The provider may also attempt to contact the review website (e.g., Yelp, Google, Healthgrades, etc.) directly to remove the defamatory statements. This strategy is often difficult and does not always yield the desired result of removing the review from the online forum. In these cases, healthcare providers can counter the negative reviews by encouraging legitimate and satisfied patients to post their honest reviews to eventually bury the unfair review in the sea of positive reviews.

Dissatisfied patients may also call a provider's place of employment after posting negative online reviews. If the patient is harassing a physician by phone or at his or her place of work-such as calling and criticizing the physician to staff or receptionists-the physician can invoke 720 ILCS 5/26.5-2 of the Illinois Criminal Code. This section prohibits the use of the telephone with intent to "abuse, threaten or harass," making such behavior a misdemeanor. If it can successfully be proven that the call was an effort to humiliate a person at his or her place of employment and harm his or her professional reputation, damages may be recoverable.

While providers do not want to incentivize a potentially unstable and dissatisfied patient to add more negative content about them on social media, a provider should consider the steps outlined above to stop the perpetrator of such defamatory behavior.

Jonna Eimer is a principal at Much Shelist.